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Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


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This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  fiimA  au  taux  de  rMuction  indiqui  ci-dessous. 


10X 

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The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

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Archives  of  Canada 


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or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^imeaning  "CON- 
TliMUED"),  or  the  symbol  V  (meaning  "END"!, 
whichever  applies. 


L'exemplaire  filmA  fut  reproduit  grAce  A  la 
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La  bibliothdque  des  Archives 
pubiiques  du  Canada 

Las  images  suivantes  ont  At6  reproduites  avec  le 
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conformity  avec  ies  conditions  du  contrat  de 
filmage. 

Les  exempiaires  originaux  dont  la  couverture  en 
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par  le  premier  plat  et  en  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  empreinte 
d'imprjssion  ou  d'illustration,  soit  par  le  second 
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originaux  sont  fiimis  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniire  page  qui  comporte  une  telle 
empreinte. 

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dernlAre  image  de  cheque  microfiche,  seion  le 
cas:  le  symbols  — ^  signifie  "A  6UIVRE  ".  le 
symbols  V  signifie  "FIN". 


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different  reduction  ratios.  Those  too  large  to  be 
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beginning  in  the  uppei  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peu>«ent  dtre 
film  -X  d  des  taux  de  reduction  diff brents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  11  est  fiim6  d  partir 
de  I'angle  sup6rieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  mithode. 


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1 

2 

3 

1 

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A 


LETTER 


TO     HER     MAJESTY 


THE    BRITISH    QUEEN, 


WITH    LETTERS    TO 


LORD  DURHAM,   LORD  GLENELG  AND  SIR 
GEORGE    ARTHUR: 


TO    WHICH    IS    ADDED    AN    APPENDIX    EMBRACING    A 

REPORT    OF    THE   TESTIMONY    TAKEN    ON    THE 

TRIAL    OF    THE    WRITER    1<Y    A    COURT 

MARTIAL,    AT    TORONTO    IN 

UPPER    CANADA. 


BY  TH-  JEFFERSON  SUTHERLAND. 


ALBANi , 

PRINTED    BY    C.    VAN    BENTHUYSEN. 
184L 


Entered  according  to  act  of  Congress,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-one,  by  Th:  Jefferson 
Sutherland  in  the  Clerk's  Office  of  the  District  Court  of  the 
Southern  District  of  New- York. 


ADVERTISEMENT. 


Of  those  who  Were  implicated  in  the  late  revolutionary  movements 
in  the  Canadas,  the  writer  and  publisher  of  this  volume  was  the  first  put 
upon  trial,  with  the  intention  on  the  part  of  the  British  government  thut 
he  should  have  been  the  first  to  be  executed.  Why  he  escaped  will  be 
understood  after  a  perusal  of  these  pages. 

There  are  now  about  150  citizens  of  the  United  Slates,  who  were 
captured  by  the  military  forces  of  Great  Britain  in  the  Canadas  during 
the  late  revolutionary  movements,  still  held  by  that  government  as  pri- 
soners of  state.    They  have  been  sent  to  Van  Dieman's  Land,  one  of  the 
British  penal  colonies,  where  they  have  been  reduced  to  the  condition 
of  common  felons;  and  thrust  into  a  convict  station  with  thieves,  robbers-, 
burglars  and  others  of  the  vilest  of  the  overflowings  of  the  prisons  of  the 
the  British  empire---without  sufficient  food  or  necessary  clothing  they  are 
being  compelled  to  laV  or  for  unreasonable  hours  at  the  most  servile  em- 
ployment ;  and  made  subject  to  the  lash  and  other  severities,  unusual  tu 
be  inflicted  by  civilized  people.    Those  men,  having  been  induced  to  be- 
lieve that  a  hearty  struggle  was  about  to  be  made  by  the  Canadians  for 
liberty,  with  a  generous  motive,  volunteered  their  services  to  aid  them 
in  their  efforts;  and  so  doing  became  prisoners.    By  the  publication  of 
this  volume,  i%  is  hoped  to  bring  the  attention  of  our  own  government, 
as  well  as  that  of  Great  Britain,  to  the  condition  of  those,  otir  unfortunate 
fellow-citizens  ;  and  that  the  British  government  may  then  be  induced 
to  set  them  at  liberty.    Should  it  prove  one  of  the  means  of  bringing 
about  the  desired  result,  the  sole  object  of  the  publication  will  have  been 
attained. 

Aside  from  the  matters  which  bear  upon  th«  object  expresa^d,  this 
volume  will  be  found  to  contain  expositions  of  legal  questions,  wh'ch  give 
it  value,  as  a  book  of  reference;  particularly,  on  trials  by  Court  Martial. 


I 


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DEDICATION. 

To  the  Attorneys  and  Counsellors  at  Law 
Of  the  United  States  of  America^ 

With  the  highest  consideration^ 

This  uork  is  respectfully  dedicated. 

Gentlemen — In  assuming  to  dedicate  this  volume  of 
LETTERS  to  SO  learned  and  patriotic  a  body  as  is  consti- 
tuted by  the  members  of  the  profession  of  the  law  in  the 
United  States,  I  have  simply  to  offer  as  an  apology  the 
motive  with  which  the  publication  is  made. 

The  letter  to  the  British  Queen  has  been  written  in 
behalf  of  the  American  citizens  who  are  now  detained  as 
prisoners  by  the  British  government,  charged  with  having 
participated  in  the  late  revolutionary  movements  in  the 
Canadas.  Some  of  these  men,  according  to  the  most  re- 
cent accounts,  have  been  sent  off  in  chains  in  a  convict 
ship  for  Van  Dieman's  Land ;  others  have  been  placed  in 
the  hulks  in  England — and  a  few  have  been  disposed  of 
in  the  penitentiary  at  Kingston  in  Upper  Canada. 

The  other  letters  comprising  this  volume  are  copies  of 
communications  which  were  addressed  by  me,  during  my 
confinement  in  the  citadel  of  Quebec,  to  the  functionaries 
of  Her  Majesty's  government.  In  them  I  have  reviewed 
the  circumstances  of  my  own  capture,  trial  and  imprison- 
ment ;  and  I  have  endeavored  to  show  that  all  the  pro- 
ceedings of  the  British  government  towards  me  were,  in 
the  extreme,  illegal  and  unjust. 

These  papers,  together,  contain  matters  of  justification 
for  all  the  American  citizens  who  have  taken  a  part  in  the 

I* 


"  DEDICATION. 

late  struggles  by  the  Canadians  for  independence ;  and 
they  are  published  with  a  view  to  furnish  arguments  ii. 
behalf  of  those  Americans  whose  fortune  it  has  been  to 
become  prisoners  in  the  hands  of  the  British  government; 
and  who,  (perhaps,  merely  for  the  want  of  ability  to  re- 
present their  case,)  have  not  yet,  like  myself,  been  able 
to  obtain  their  liberation. 

I  am  informed  by  a  gentleman  residing  in  London,  who 
is  highly  esteemed  as  a  man  of  honor  and  probity — and 
who  possesses  soma  political  reputation  in  England,  that 
if  I  should  lay  before  the  public  these  letters  which  have 
been  the  instruments  of  my  own  release,  they  would  be 
made  to  have  much  influence  with  the  British  govern- 
ment to  procure  the  release  of  the  American  citizens  who 
are  still  detained  in  prison — as  my  case  was  a  very  near 
parallel  to  theirs ;  with  the  difference,  that  I  was  one  of 
the  principal  and  most  active  leaders — and  subject  to  no 
other  influence  than  my  own  principles;  whi'e  they,  who 
are  now  in  prison,  are  young  men,  without  influence — 
the  sons  of  the  farmers  and  mechanics  of  our  frontier 
counties,  who  were  perswaded  by  others  to  embark  in  the 
late  military  movements  of  the  Canadian  revolutionists. 

In  the  early  struggle  of  our  forefathers,  the  lawyers  of 
our  country  were  found  front  and  foremost  in  the  cause 
of  political  freedom.     The  charter  of  American  liberty, 
the  Declaration  of  Independence,  was  the  work  of  Thomas 
Jefferson,  a  lawyer;  and  while  John  Adams,  a  lawyer, 
proclaimed  liberty  at  the  north,   in  deep  and   hallowed 
tones — Patrick  Henry,    a  lawyer,    reechoed   the   sacred 
principle  at  the  south,  with  the  cry  of  "  Liberty  or  death!' 
Shall  I  not  be  safe,  then,  in  supposing  the  lawyers,  of  the 
present  day  in  our  country,  no  less  the  advocates  of  politi- 
cal liberty — and  as  firm  friends  of  the  oppressed  ?   and 


the 


DEDICATION. 


having  shown,  (as  I  believe  I  have  in  this  volume,)  that 
the  further  detention  of  the  American  citizens  now  in  the 
custody  of  the  British  government  is  no  longer  called  for 
by  a  regard  for  the  safety  of  that  government,  or  the  peace 
and  quiet  of  the  Canadas — and  that  the  course  being  pur- 
sued by  that  government,  towards  those  individuals,  can- 
not be  justified  by  the  rules  of  civilization,  or  upon  any 
other  reasonable  pretext — Gentlemen,  I  have  ventured 
to  hope  that  your  actions  will  not  be  ([uieted,  nor  your 
voices  stilled  until  our  unfortunate  countrymen  shall  be 
set  at  liberty  and  permitted  again  to  return  to  their  homes. 

TH:  J.  SUTHERLAND. 
Nejv  York,  Jaimary  21,  1341. 


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LETTER  TO  THE  BRITISH  QUEEN. 


To  Htm  Majesty  Victoria  I.  Soccrcign  Qiieeii  of  the 
United  Kingdom  of  Great.  Britain  and  Ireland, 
MADA3I — By  your  Majesty,  the  reception  of  a  commu- 
tation from  an  humble  citizen  of  a  foreign  republic,  may 
be  held  an  extraordinary  matter ;  and  perhaps,  be  regard- 
ed as  strange  in  its  course ;  but  the  position  in  which  I 
have  lately  been  plac€^d,  in  relation  to  your  Majesty's 
government,  by  a  course  of  circumstances  peculiar  to 
themselves,  fully  justifies,  as  I  believe,  the  liberty  I  am 
about  to  take  of  addressing  your  Majesty,  as  the  chief 
executive  of  the  British  nation. 

Your  Majesty  will  be  informed  that  I  was  among  the 
number  of  those  American  citizens  who,  in  1837,  connect- 
ed themselves,  as  military  officers,  with  the  inhabitants 
forming  a  revolutionary  party  in  the  province  of  Upper 
Canada,  and  who  wer^  then  making  an  effort  to  subvert 
the  authority  of  your  Majesty's  government  in  that  pro- 
vince— to  drive  their  masters,  who  were  your  Majesty's 
agents,  from  the  soil — and  to  establish  a  republican  form 
of  government  in  the  stead  of  the  colonial  system  main- 
tained therein  by  your  Majesty.  That  after  I  had  been 
for  some  short  time  engaged  in  the  revolutionary  move- 
ments   of  Upper  Canada,  I    withdrew  from  the    cause 


10 


LETTER    TO    THE    BRITISH    QUEEN. 


of  the  revolutionists,  having  become  satisfied  that  nothing, 
at  the  time,  could  be  moved  in  behalf  of  their  undertaking 
w'th  a  promise  of  success — and  doubting  that  any  thing 
could  be  effected,  with  such  means  as  we  possessed,  in  a 
manner,  as  I  deemed,  honorable  or  creditable  to  myself 
as  a  commander ;  and  that  after  having  so  withdrawn 
from  the  cause  of  the  Canadian  revolutionists — and  when 
I  was  in  no  manner  connected  with  any  of  their  move- 
ments, or  affairs — and  when  I  was  neaceably  pursuing  my 
own  private  business,  within  the  United  States,  at  a  dis- 
tance of  not  less  than  seven  miles  within  our  lines,  I  was 
come  upon  and  kidnapped  by  an  armed  party  of  your  Ma- 
jesty's officers  and  soldiers  who  had  crossed  our  lines  for 
the  purpose  of  my  capture ;  and  by  them  carried  off*  into 
the  province  of  Upper  Canada ;  and  there,  by  an  order  of 
your  Majesty's  Lieutenant  Governor,  Sir  F.  B.  Head,  I 
was  tried  by  a  court  martial,  on  a  charge  of  having  joined 
with  and  participated  in  the  movements  of  the  revolution- 
ists of  that  province — was  threatened  with  immediate  ex- 
ecution, tortured  with  suspense  for  a  long  time  ;  and  then, 
had  passed  upon  me  a  sentence  "  to  be  transported,  as  a 
felon,  to  one  of  your  Miijesty's  islands  for  life  " — when, 
by  the  laws  of  the  British  nation,  upon  the  proceedings 
before  the  court  martial,  I  was  clearly  entitled  to  an  ac- 
quittal. That  the  members  of  the  court  martial,  by  whom 
I  was  tried,  took  their  seats  with  predeterminations  to 
find  me  guilty  at  all  hazards;  which  they  did — and  iii- 
violation  of  every  principle  of  justice  and  of  law,  as  it  will 
appear  from  an  examination  of  a  letter  addressed  by 
me,  during  my  imprisonment  in  the  Canadas,  to  Lord 
Durham,  then  your  Majesty's  High  Commissioner,  &c.,  a 
copy  of  which  is  hereunto  annexed,  marked  A ;  and  while 
I  was  debarred  from  all  opportunity  to  comply  with  an 


LETTER   TO   THE   BRITISH   QUEEN. 


11 


extremely  unjust  demand,  as  it  will  appear  from  the  ex- 
amination of  a  LETTER  addressed  by  me  to  Sir  George 
Arthur,  your  Majesty's  Lieutenant  Governor  of  Upper 
Canada,  a  copy  of  which  is  hereunto  annexed,  marked  B 
— and  that  although  it  was  plain  to  all  those  acquainted 
i  with  British  institutions,  of  the  commonest  understanding, 
I  that  I  was  illegally  detained,  as  it  will  appear  from  an 
I  examination  of  a  letter  addressed  by  me  to  Lord  Glenelg, 
a  copy  of  which  is  hereunto  annexed,  marked  C,  the  offi- 
I  cers  of  your  Majesty's  government  still  kept  me,  under 
I  the  seveiest  condition  of  imprisonment,  for  more  than  a 
1  year. 

I  do  not,  however,  address  your  Majesty  on  this  occa- 

I  sion,  fDr  the  purpose  of  preferring  any  complaints  for  the 

treatment  which  I  have,  myself,  received  at  the  hands  of 

your  Majesty's  government — and  which  I  deem  to  have 

been  unwarrantable.     Such  is  not  my  purpose. 

But,  I  would  suggest  to  your  Majesty,  that  during  those 
political  commotions  in  Upper  Canada,  in  which  I  have 
already  set  forth,  that  I  was  myself  engaged;,  many  indi- 
viduals, inhabitants  of  that  province,  (as  also  of  the  pro- 
vince of  Lower  Canada,)  who  had  been  variously  honored 
with  political  preferments  by  the  people  of  those  pro- 
vinces, came  into  the  frontiers  of  the  United  States — and 
there  publicly  alleged  various  grievances  against  your 
Majesty's  colonial  government  maintained  in  the  provinces 
of  the  Canadas — and  solicited  aid  and  assistance  from  our 
people  tc  enable  them  to  redress  their  alleged  grievances 
by  the  establishment  of  a  government  independent  of  your 
Majesty ;  and  that  at  that  time,  the  cause  of  the  Canadian 
revolutionists  was  espoused  by  a  vast  majority  of  the  peo- 
ple of  our  whole  frontier — and  public  meetings  in  their 
behalf  wete  held  throughout  the  states  which  border  upon 


1: 

.}    •.  -I 


12 


LETTER  TO  THE  BRITISH  QUEEN. 


the  Canadas — and  were  numerously  attended.  That  at 
those  meetings  it  was  urged  by  the  most  honorable  and 
most  exalted  people  of  our  country,  that  to  embark  in 
those  revolutionary  movements — and  to  give  personal  aid 
to  the  people  of  the  Canadas,  who  were  then  struggling 
to  establish  an  independent  republican  form  of  govern- 
ment, was  both  commendable  and  praiseworthy ;  and  a 
large  number  of  American  citizens,  (as  well  as  myself,) 
were  soon  found  embarked  in  the  revolutionary  move- 
ments of  the  Canadas  then  being  carried  on — a  portion 
of  whom  were  persons  without  political  influence,  either 
in  the  United  States  or  the  Canadas — and  were  in  no 
wise  capacitated  to  hold  in  any  military  body  of  men  any 
other  rank  or  grade  than  that  of  common  soldiers(l.) — yet 
many  of  this  inferior  class,  (as  well  as  some  others,)  who 
have  been  captured  by  your  Majesty's  military  forces,  are 
now  still  detained,  by  your  Majesty's  government,  m  the 
condition  of  imprisonment  usually  bestowed  only  upon  the 
worst  class  of  common  felons.  According  to  my  informa- 
tion, there  are  now  irom  sixty  to  an  hundred  American 
citizens,  of  the  class  I  have  mentioned,  thus  detained  by 
your  Majesty's  government.  They  are  principally  from 
the  sons  of  the  farmers  and  mechanics  of  our  frontier 
counties,  who  have  been  persuaded  to  embark  in  the  af- 
fair by  others.  By  individuals  of  our  country  to  whom 
those  men  have  been  habituated  to  look  up  to  for  a  decla- 
ration of  what  was  just  and  proper  in  a  public  point  of 
view,  they  were  recommended  and  even  urged,  to  join 
the  standard  of  the  Canadian  revolutionists — and  having 
done  so,  by  the  fortunes  which  have  befallen  them,  they 


(1.)  All  those  American  citizens  who  became  prisoners  to  the  British  go« 
vernmeni  of  a  higher  grade,  have  been  executed,  or  they  have  escaped 
through  the  irre^marity  of  the  proceedings  against  them,  or  from  the  loop- 
holes of  their  pnson 


LETTER   TO    THE    BRITISH    QUEEN. 


13 


That  at 
liable  and 
embark  in 
rsonal  aid 
struggling 
3f  govern- 
ly ;  and  a 
,s  myself,) 
ary  move- 
— a  portion  | 
ice,  either 
/ere  in  no 
if  men  any  | 
rs(l.)— yet 
hers,)  who 
forces,  are 
ent,  in  the 
y  upon  the 
y  informa* 
American 
etained  by| 
)ally  from 
ur  frontier! 
in  the  af- 
to  whom! 
)r  a  decla- 
point  of  I 
d,  to  join 
nd  having 
lem,  they 

le  British  go- 
lave  escaped 
lorn  the  loop- 


have  become  prisoners — and  arc  now  enduring  the  seve- 
rities of  a  dungeon,  while  their  more  responsible  as  well 
as  more  fortunate  fellow  citizens,  by  whom  they  were  in- 
duced to  embark  in  the  undertaking  which  has  placed 
them  in  their  present  condition,  are  now  enjoying  their 
wonted  freedom  and  comforts  of  life ;  and  I  would  then 
submit  to  your  Majesty,  if  the  further  detention  of  those 
American  citizens  who  are  now  prisoners  in  the  hands  o[ 
your  Majesty's  government,  charged  with  having  been 
concerned  in  the  late  revolutionary  movements  of  the  Ca- 
nadas,  b*^  not  in  violation  of  that  liberal  policy  which  is 
provided  by  the  modern  rules  of  civilization — and  if  the 
continuance  of  those  persons  in  the  condition  of  common 
felons,  as  they  are  now  placed,  is  not  calculated  to  bring 
us  back  to  the  usages  of  the  savage  people  of  a  darker 
age,  by  the  establishment  of  a  spirit  of  retaliation — and 
thereby  laying  the  foundations  for  wholesale  murder  and 
an  exterminating  warfare,  to  be  acted  upon  at  some  fu- 
ture day? 

Your  Majesty  will  understand  that  neither  myself, 
those  who  are  now  prisoners,  nor  any  others  of  the  inha- 
bitants of  the  United  States  had  any  part  in  or  connexion 
with  the  political  matters  and  occurrences  which  preceded 
the  revolutionary  movements  in  the  Canadas  of  1837  and 
1838 — and  that  we  did  not  interfere  until  we  beheld  a 
civil  commotion  began  and  in  full  operation  in  those  pro- 
vinces— and  our  interfers^nce  and  our  services  had  been 
asked  for  by  men  on  whom  had  been  bestowed  the  high- 
est honors  at  the  disposition  of  the  inhabitants  of  those 
provinces.  Nor  did  we  connect  ourselves  with  the  revo- 
lutionary movements  in  those  provinces  until  we  had  seen 
that  your  Majesty's  government  had  failed  there  to  give 

security  to  life  and  property,  (the  only  legitimate  purposes 

2 


.vi(: 


/ 


14 


LETTER    TO   THE   B1ITISH   QUEEN. 


of  government ;)  and  that  robbery,  arson  and  murder  were 
perpetrated  with  boldness  and  impunity  in  every  section 
of  the  country ;  nor  until  we  had  seen  thousands  of  the 
most  worthy,  honorable  and  respected  inhabitants  of  those 
provinces,  seized  without  proof  of  crime — and  upon  accu- 
sations, evidently  false  and  only  made  by  the  most  arrant 
vagabonds,  thrust  into  prison — their  homes  robbed  and 
their  wives  and  children  driven  off  from  their  possessions 
and  thrown  upon  our  borders,  appealing  to  our  sympathies 
for  the  bread  of  existence ;  nor  until  we  had  seen  a  large 
foreign  army  landed  upon  their  shores  and  marshalled 
through  their  territories,  not  to  defend  them  from  the  at- 
tacks of  foreign  enemies,  but  to  subject  the  people  to 
political  slavery.  Then,  with  this  picture  before  our  eyes, 
when  we  were  appealed  to  for  assistance,  was  it  not  to  be 
expected  that  we  should  be  moved  by  that  appeal  ? 

It  is  notorious  that  in  our  course  we  had  the  counte- 
nance of  some  of  the  best  men  in  America — and  that  we 
were  applauded  by  a  large  portion  of  our  fellow  citizens ; 
and  your  Majesty  may  have  known  that  there  has  been 
placed  upon  the  banks  of  the  Hudson,  a  monument  to  the 
memory  of  Thadeus  Kosciusko— and  that  our  citizens  in 
1824  raised  the  triumphal  arch  for  Lafayette.  Were  not 
those  things  done  as  rewards  for  similar  acts  as  these  of 
mine ;  and  of  the  other  American  citizens  whom  your  Ma- 
jesty's government  now  have  incarcerated  in  its  dun- 
geons ?  That  they  were  so  there  can  be  no  doubt ;  and  is  that 
not  in  effect,  as  much  as  to  say  to  the  young  and  gallan. 
of  our  country — "  Go  and  do  likewise  and  be  alike  honor- 
ed ?"  So  we  received  it — and  if  we  have  sinned,  it  is  no 
more  our  fault  than  that  of  the  whole  American  people. 

We  did  no  more  than  we  had  seen  repeatedly  perform  • 
ed  by  American  citizens  in  aid  of  the  revolutionists  of 


give 


I  his  saf 
I  tish  pj 
g  foreign 
I  Mclntc 
4  commc 

full  of 
■^  my  pu] 

He  fiiai( 


LETTER    TO    THE    BRITISH    QUEEN. 


16 


der  were 
y  section 
ds  of  the 
3  of  those 
)on  accu- 
)st  arrant 
)bed  and 
ssessions 
mpathies 
n  a  large 
arshalled 
m  the  at- 
people  to 
our  eyes, 
not  to  be 
il? 

3  counte- 
that  we 
citizens ; 
has  been 
nt  to  the 
izens  in 
Vere  not 
these  of 
your  Ma- 
its  dun- 
nd  is  that 
i  gallan. 
:e  honor- 
,  it  is  PC 
eople. 
perform 
onists  oi 


the  provinces  of  other  countries  ;  and  we  had  seen  British 
subjeots  giving  the  same  aid  to  the  revoliuionists  of  the 
Spanish  colonies  of  South  Ameiica,  which  we  proposed  to 
give  ^0  the  Canadians.     We  had  seen  British  subjects 
doinnr  more  to  aid  a  revolution  in  Greece  than  we  had  of- 
fered  to  do  for  the  Canadians.     We  had  seen  British  sub- 
jects effecting  more  in  carrying  out  a  revolution  in  Portu- 
gal than  we  had  aimed  to  do  for  the  Canadians ;  and  all 
these  things  were  done  while  there  were  treaties  of  peace 
and  amity  existing  between  Great  Britain  and  the  govern- 
ments of  all  those  countries  I  have  mentioned ;  and  the 
only  interferance  by  the  British  government  with  the  pro- 
ceedings of  British  subjects,  in  their  attempts  to  give  aid 
to  revolutionary  movements  in  other  countries,  I  find  re- 
corded in  the  annals  of  that  country,  occurred  in  1819. 
An  individual  bearing  the  name  and  title  of  Sir  Grearor 
McGregor,  who  had  received  a  commission  as  a  general 
in  the  army  of  one  of  the  revolted  Spanish  provinces  of 
South  America,  purchased  a  number  of  ships  in  England 
for  the  South  Americans — and  engaged  of  British  sub- 
jects, officers  and  soldiers,  amounting  to  a  considerable 
force ;   and  having  embarked  them  on  board  his  ships, 
with  a  quantity  of  arms,  military  stores  and  camp  attirail 
and  dropped  down  to  the  Downs,  (so  as  to  be  entirely  out 
of  the  reach  of  the  government,  as  soon  as  it  might  be  for 
his  safety  or  interest,)  a  bill  was  introduced  into  the  Bri- 
tish parliament  to  prevent  enlistments   in  England  for 
foreign  service.     In  the  debate  on  this  bill,  Sir  James 
Mcintosh,  a  distinguished  statesman  and  member  of  the 
commons  of  Great  Britain,  made  a  statement  which  is  so 
full  of  historical  information,  that  I  deem  it  essential  to 
my  purpose  to  recite  it  for  your  Majesty's  consideration. 
H»  said — 


16 


LETTER    TO    THE    BRITISH    QUEEN. 


(( 


The  historical  records  of  England   aflbrds  innumera- 
ble instances  of  British  troops  serving  under  foreign  belli- 
gerents, without  subjecting  themselves  to  any  penalty  in 
consequence.     A  Catholic  regiment  served  in  the  Spanish 
service  in  Flanders  under  Lord  Brudenel  of  Wardour,  a 
nobleman  distinguished  among  the  first  of  his  contempo- 
raries ;  and  a  regiment  of  Scottish  catholics,  commanded 
by  the  Earl  of  Home,  entered  the  service  of  the  King  of 
France.     In  neither  instance,  however,  was  any  breach 
of  neutrality  supposed  to  have  taken  place.     But  perhaps 
it  might  be  more  agreeable  to  the  taste  of  the  right  hono- 
rable gentleman  opposite,  if  he  cited  Spanish  examples  to 
justify  the  proceedings  against  which  the  present  bill  was 
brought  in.     Not  only  was  there  the  authority  of  facts 
and  historical  experience  against  the  principle  of  the  pro- 
posed measure,  but  there  was  that  of  the  writers  of  the 
laws  of  nations,  particularly  one  of  the  most  intelligent  of 
those  writers,  the  celebrated  Bynkershook,  who  was  pre- 
sident of  the  Courts  of  Holland.     On  the  question,  whe- 
ther it  be  a  breach  of  neutrality  to  allow  a  friendly  belli- 
gerent to  levy  troops  in  your  territory  ?  he  answers  in  the 
negative.     What  would  have  been  the  cheers  of  the  gen- 
tleman opposite  had  any  member  on  his  side  of  the  house 
ventured  upon  asse.ting  an  opinion  similar  to  that  expres- 
sed by  this  grave  authority  ?     In  the  war  of  the  Bishop 
of  Munster  against  Holland,  in  1666,  the  States  General 
complained  to  the  governor  of  the  Spanish  Netherlands, 
that  he  permitted  troops  for  the  service  of  the  Bishop  to 
be  levied  within  his  terr'tories.     What  was  the  governor's 
reply  ?     That  the  Spanish  territories  were  equally  open 
to  the  States  General  as  to  the  Bishop  for  the  purpose  in 
question ;  for  although  the  latter  was  his  friend,  he  would 
act  with  justice  towards  both.     But  this  agreeably  to  the 


mode 


siderc 
that  t 
of  lav 
of  th( 
one  o: 
Europ 
cated 
combi 
would 
Gusta 
tion  of 
by  a  f( 
the  Dc 
Scotlai 
other  t 
\  Europe 
burst  i 
chief  b 
Not  an 
he  kne" 
I  the  Ma 
land  cor 
I of  the  1 
|that  tin 
Isident  i 
|strate  o 
3n  the  p 
^tel,  thai 
|allowinj 
Jgerent  j 
j^nother 


the 


■i 


reig 


LETTER    TO   THE    BRITISH    QUEEN. 


17 


modern  interpretation  of  the  law  of  nations,  would  be  con- 
sidered a  breach  of  neutrality.  It  was  clear,  however, 
that  the  Spanish  governor  thought  otherwise.  A  breach 
of  law,  forsooth !  What  would  the  scrupulous  politicians 
of  the  present  time  say,  when  he  mentioned  the  name  of 
one  of  the  greatest  princes  and  most  valiant  leaders  that 
Europe  had  ever  beheld — a  man  whose  sword  had  vindi- 
cated the  cause  of  civil  and  religious  liberty  against  the 
combined  efforts  of  tyrannical  power — what  he  asked, 
would  they  say,  when  he  referred  them  to  the  instance  of 
f  Gustavus  Adolphus,  who  had  in  his  pay,  not  a  small  por- 

'I  

I  tion  of  British  troops,  not  a  little  smuggled  army,  headed 
by  a  few  half  pay  officers,  on  board  a  transport  or  two  in 
f  the  Downs,  but  a  band  of  six  thousand  men  raised  in 
Scotland — and  by  whose  cooperation,  with  a  handful  of 
I  other  troops,  he  was  enabled  to  traverse  a  great  part  of 
)  Europe,  to  vanquish  the  hosts  that  opposed  him — and  to 
J  burst  the  galling  fetters  of  Germany  ?  and  who  was  the 
I  chief  by  whom  those  six  thousand  British  troops  were  led  ? 
I  Not  an  adventurer,  not  a  Sir  Gregor  McGregor,  of  whom 
I  he  knew  little  and  for  whom  he  certainly  cared  less — but 
I  the  Marquis  of  Hamilton,  a  man  of  the  first  distinction 
le  house  |and  consequence  in  his  own  country,  the  personal  friend 
expres-  |of  the  king,  from  whom,  however,  he  had  no  license.  At 
Bishop  fthat  time  the  Spanish  and  imperial  ambassadors  were  re- 
General  fsident  in  London,  but  neither  of  them  presumed  to  remon- 
lerlands,  |strate  or  make  a  demand  like  that  which  had  been  made 
ishop  to  Jin  the  present  day.  It  was  expressly  laid  down  by  Vat- 
itel,  that  a  nation  did  not  commit  a  breach  of  neutrality  by 
|allowing  its  subjects  to  enter  into  the  service  of  one  belli- 
gerent and  refusing  the  same  permission  with  respect  to 
^nother.  There  was  one  case  more,  which  occurred  in 
he  reign  of  James  the  First,  to  which  he  could  not  help 

2* 


lumera- 
n  belli- 
nalty  in 
Spanish 
dour,  a 
ntempo- 
manded 
King  of 
r  breach 
perhaps 
ht  hono- 
mples  to 
bill  was 
of  facts 
the  pro- 
's of  the 
ligent  of 
was  pre- 
in,  whe- 
ly  belli - 
rs  in  the 
he  gen- 


vernor  s 
lly  open 
rpose  in 
le  would 
y  to  the 


18 


LETTER    TO    THE    BRITISH    QUEEN. 


adverting.  At  that  period  a  great  body  of  English  troops, 
commanded  by  one  of  the  most  gallant  captains  of  his 
day,  Sir  Horace  Vere,  who  s'?rved  his  time  against  the 
Spaniards  and  received  pay  from  a  foreign  power.  Yet 
Gondomar,  the  Spanish  ambassador,  whom  King  James 
was  endeavoring,  by  the  most  servile  and  abject  submis- 
sion to  conciliate,  who  might  almost  be  termed  the  vice- 
roy of  Spain  in  this  country,  who  had  sufficient  influence 
to  cause  the  murder  of  that  most  distinguished  individual, 
the  ornament  of  his  native  country  and  of  Europe,  who 
united  in  himself  more  kinds  of  glory  than  had  perhaps 
ever  been  combined  in  an  individual,  that  intrepid  soldier, 
that  skilful  mariner,  that  historian,  that  poet,  that  philoso- 
pher, that  statesman,  Sir  Walter  Raleigh — Gondomar, 
whose  power  protected  him  from  the  punishment  he  de- 
served for  such  an  act,  dared  not  go  so  far  as  to  require 
the  boon  which  his  Majesty's  ministers  now  call  on  the 
house  of  commons  of  England  to  have  the  condescension 
to  grant !" 

Indeed!  by  an  examination  of  the  record  of  the  times, 
your  Majesty  will  find  that  whenever  there  has  been  ex- 
hibited a  similar  state  of  affairs  to  those  which  existed  in 
the  Canadas  in  1837  and  1838,  wherever  it  has  been, 
there  we  have  found  the  British  people  acting  as  volun- 
teers with  their  swords.  I  bring  these  facts  to  the  notice 
of  your  Majesty  for  the  purpose  of  showing  that  the  Ame- 
rican citizens  who  embarked  in  the  undertaking  to  sustain 
the  late  revolutionary  movements  in  the  Canadas,  did  no 
more  than  there  had  been  examples  set  for  them  in  almost 
every  country  on  the  face  of  the  earth,  by  your  Majesty's 
subjects ;  and  that,  therefore,  although  a  severe  and  ener- 
getic self  defence  was  expected  to  have  been  met  from 
your  Majesty's  forces — we  could  not  anticipate  the  treat- 


^me  a 


New  : 


M' 


LETTER   TO   THE   BRITISH   QUEEN. 


19 


troops, 
;  of  his 
inst  the 
r.  Yet 
I  James 
submis- 
he  vice- 
ifluence 
lividual, 
pe,  who 
perhaps 
I  soldier, 
philoso- 
)ndomar, 
it  he  de- 
0  require 
lU  on  the 
pscension 

he  times, 
been  ex- 
xisted  in 
las  been, 
as  volun- 
he  notice 
he  Ame- 
0  sustain 
,  did  no 
tn  almost 
ajesty's 
nd  ener- 
let  from 
he  treat- 


ment which  has  been  bestowed  upon  those  of  us  who  were 
engaged  in  those  revolutionary  movements  and  whose 
fortunes  it  has  been  to  fail  into  the  hands  of  your  Majes- 
ty's government;  and  I  would  ask  your  Majesty,  if  from 
a  government,  supported  by  such  people  as  your  Majesty's 
subjects,  we  had  not  a  right  to  expect  to  be  met  with  more 
liberal  measures  ;  and  to  have  received  more  generous 
treatment  than  such  as  has  been  meted  out  to  us  ? 

In  a  document,  very   recently  published,  your  Majes- 
ty's governor  general  of  the  Canadas  has  declared  "  the 
rebellion  at  an  end" — and  he  has  proclaimed,  "  that  he  no 
I  longer  entertains  fears  of  those  provinces  being  again  dis- 
turbed by  political   commotion."     I   have,   also,   before 
I  me  a  document  emanating  from  your  Majesty's  govern- 
ment, during  the  past  year,  wherein  it  is  shown  that  your 
iMajesty  has  a  military  force  now  organized  in  the  Cana- 
|das,   amounting  to  more  than  50,000  men,  including  re- 
gulars  and    irregulars.     While    such   a   force    is   main- 
tained in  those  provinces  by  your  Majesty,  the  idea  of 
lany  successful  movement  on  the  part  of  the  revolutionists, 
ithout  the  assistance  of  some  powerful  nation,  having  at 
^ts  command  great  resources  and  a  large  and  well  appoint- 
d  army,  is  not  now  likely  to  be  entertained. 
For  these  reasons,  in  behalf  of  the  American  citizens 
ho  are  now  prisoners  to  your  Majesty's  government,  I 
ould  respectfully  solicit  your  Majesty  to  notice  their  con- 
ition  ;  and  so  to  consider  their  case  as  to  allow  them  to  he 
Speedily  released  from  their  present  confinement  andper- 
initted  to  return  to  their  country  and  friends. 
All  of  which  is  respectfully  submitted, 

For  your  Majesty's  early  consideration. 

TH:  J.  SUTHERLAND. 
I    New  York,  January  1,  1S40. 

I 


1 


(A.) 

To  THE  Right  Honorablk  John  George  Earl  of  Dur- 
ham, Viscount   Lambton,  &c.  ice.  &c.  Knight   Grand 
Cross  of  the   most   Honorable   Military    Order   of  the 
Bath,   one  of   Her   Majesty's   most     Honorable   Pri- 
vy  Council,  and  Governor  General,  Vice  Admiral  and 
Captain  General  of  all  Her  Majesty's  Provinces  withiii 
and  adjacent  to  the  Continent*  of  North  America. 
I     Mv  Lord — The  fact  that  I,  (a  citizen  of  the  United 
States  of  America,)  am   now  detained  as  a  prisoner  in 
this  fortress,  I  must  believe  is  well  known  to  your  Lord- 
ship ;  and  therefore,  I  beg  permission  to  call  your  Lord- 
ship's early  attention  to  the  causes  and  circumstances  of 
my  detention  and  imprisonment  by  Her  Majesty's  Govern- 
vernment,  to  the  end  that  your  Lordship  may  order  my 
immediate  liberation. 

Born  and  educated  in  a  republic  where  no  titles  are  con- 
erred  and  no  distinctions  recognized,  except  those  limi- 
ed  to  place ;  and  where  the  most  exalted  in  power  may  be 
amiliarly  approached  with  the  most  homely  language,  I 
m,  my  Lord,  consequently  wholly  uninstructed  in   the 
anner  in  which  it  is  usual  for  persons  of  your  Lordship's 
xalted  rank  and  station,  in  this  country,  to  be  addressed  ; 
nd  at  this  moment  I  find  myself  not  a  little  embarrassed 
n  the  choice  of  words  to  convey  my  ideas,  for  while  I 
ould  approach  your  Lordship  with  all  the  deference  and 
ourtesy  of  language  your   Lordship  is  entitled   to,  and 
hich  it  would  be  as  creditable  to  myself  as  respectful  to 
our  Lordship  for  me  to  observe,  I  am  in  danger  of  being 
ihought  to  make  an  unbecoming  supplication.    Therefore, 
beg  I  may  be  allowed  to  address  your  Lordship  in  the 
lanner  common  to  my  own  country;  and  then,  however 


fl 


i\ 

il 


')•> 


LETTER  TO  LORD  DUIUIA.M. 


(liflerent  may  be  the  langim(y(^  of  this,  from  tht.'  commii- 
nicntions  your  Lordship  hns  been  in  the  habit  of  receiv- 
ing, while  it  is  recollcct(>(),  I  am  an  American  citizen^  I 
would  have  your  Lordship  regard  no  expression  of  mine 
as  intentionally  indecorous. 

The  Lieutenant  Governor  of  the  Province  of  Upper 
Canada,  having  caused  information  to  be  given  mo  •'  that 
copies  of  all  the  papers  and  documents  connected  witli 
my  capture  and  detention,  and  trial  before  a  Militia  Gene- 
ral Court  Martial  of  that  Province,  (of  which  trial  I  am  to 
presume  your  Loidship  has  been  in  some  manner  advised,) 
had  been  transmitted  to  the  Home  Government  of  Great 
Britain  for  Her  Majesty's  consideration,"  I  had  intended 
this  communication  for  the  Secretary  of  State  for  the 
Colonies ;  but  having  been,  (unexpectedly  to  me,)  re- 
moved into  this  Province,  it  has  suggested  itself  to  my 
mind  that  the  determination  of  my  case  is  now  within  the 
prerogative  of  your  Lordship,  and  that  it  might  be  regard- 
ed as  indecorous,  on  my  part,  to  attempt  to  pass  your 
Lordship  with  a  communication  to  one  of  Her  Majesty's 
Secretaries  of  State,  at  London.  If  I  am  in  any  way 
mistaken,  I  trust  your  Lordship  will  do  me  the  kindness 
to  cause  this  communication  to  go  into  the  hands  of  those 
of  Her  Majesty's  Government,  who  do  hold  the  preroga- 
tives, and  whose  duty  it  is  to  hear  and  determine  this 
matter,  in  which  my  future  liberty  is  concerned. 

I  would  state  foi  your  Lordship's  consideration,  that  at 
the  time  an  attempt  was  made,  during  the  past  year,  by  a 
portion  of  the  inhabitants  of  the  Province  of  Upper  Ca- 
nada, to  effect  a  political  revolution  in  that  Province  and 
to  establish  a  government  therein,  independent  of  Great 
Britain,  numbers  of  the  inhabitants  of  the  Province  fled 
to  the  borders  of  the  United  States,  and  there  painted  and 
described  to  the  people  of  my  country  many  grievances 


iiagara 
)rce,  1 1 
)rtify  th 

JStv's  fo 

fng  the 


LETTER    TO    LORD    DURHAM. 


5>3 


commii* 

f  receiv- 

zitizen^  I 

of  mine 

jf  Upper 


no 


(i 


that 
ted  with 
;ia  Gene- 
I  I  am  to 
advised,) 
of  Great 
intended 
te  for  the 
me,)  re- 
olf  to  my 
vithin  tho 
pe  regard- 
pass  your 
Majesty's 
any  way 
kindness 
s  of  those 
preroga- 
ine  this 

in,  that  at 
[year,  by  a 

pper  Ca- 
Ivince  and 

of  Great 
Ivince  fled 

tinted  and 
grievances 


to  which  they  allcg(!d  tlio  people  o*"  thc.«<«,'  Provincr  j  were 
subjected  hy  the  system  of  Colonial  (ioverninent  mriin- 
fained  herein  by  the  British  nation  ;  and  that  such  de- 
jscription  and  statements  of  wrongs  were  generally  be- 
lieved by  my  countrymen:  and  your  Lordship,  no  doubt, 
has  been  advised  that  a  birgc  majority  of  the  citizens  (if 
the  United  States,  bordering  upon  the  Provinces  of  the 
Canadas,  then  took  a  deep  interest  in  the  political  affairs 
if  these  Provinces,  and  warmly  espoused  the  cause  of  the 
•evolutionists.  That  such  was  the  fact,  and  that  among 
he  number,  I  was  one,  I  would  have  your  Lordship  to 
lunderstand. 

At  that  time,  it  was  represented  to  mc  by  recent  inha- 
litants  of  the  Canadas,  (many  of  whom  had  held  some 
if  the  highest  political  stations  in  the  Provinces,)  that  the 
number  of  the  people  of  the  Province  of  Upper  Canada 
ho  were  disafTected  towards  the  British  Colonial  Govern- 
(nent,  and  who  were  then  disposed  and  ready  to  try  an 
ippeal  to  arms,  and  make  the  effort,  in  connexion  with 
ihe  people  of  the  Lower  Province,  to  establish  the  political 
Independence  of  t'  e  Canadas,  amounted  to  more  than  three' 
fourths  of  the  whole  population  of  the  Province;  and  be- 
lieving, as  I  certainly  did,  that  the  insurrection  which 
as  then  begun  would  amount  to  a  general  rising  of  the 
habitants,  I  consented  to  be  employed  as  one  of  the  offi- 
)ers  to  conduct  the  military  operations  on  the  part  of  the 
[evolutionists  :  and  on  or  about  the  16th  day  of  Dect..  '  -^r 
:st,  I  joined  an  armed  body  of  men  who  had  taken  pos- 
ission  of,  and  who  then  occupied  Navy  Island  in  the 
iagara  River ;  and  there,  as  second  in  command  of  the 
irce,  I  used  the  utmost  of  my  abilities  and  exertions  to 
irtify  the  Island  so  as  to  resist  any  assault  from  Her  Ma- 
istv's  forces,  and  to  reduce  the  officers  and  men  compo- 
ing  the  force  congregated  at  that  place  to  such  a  state  of 


■nr 


24 


LETTER   TO   LORD   DURHAM. 


discipline  as  would  enable  them  to  act  in  the  field  against 
Her  Majesty's  troops ;  and  that  I  was  thus  employed  on 
Navy  Island  until  about  the  28th  day  of  December,  when 
I  left  the  Island  id  proceeded  to  the  frontiers  on  the  De* 
troit  River,  with  instructions,  from  the  persons  under  w?iose 
orders  I  acted,  to  take  the  command  of  a  force  of  armed 
men  which  was  being  embodied  in  that  vicinity  to  assist 
in  sustaining  the  revolution  ;  and  on  the  8th  of  January, 
(1838,)  I  arrived  on  the  Detroit  River,  and  there  found 
a  considerable  force  embodied,  with  which  I  remained  un- 
til the  lOlh  day  of  the  same  month.  On  the  9th,  with  a 
small  detachment  of  the  force  placed  under  my  command, 
I  took  possession  of  Bois  Blanc,  (an  Island  in  the  Detroit 
River,  which  is  said  to  be  within  the  Province  of  Jppei 
Canada,)  driving  therefrom  Her  Majesty's  forces,  by 
which  it  had  been  occupied — and  capturing,  at  the  same 
time,  a  stand  of  Her  Majesty's  colors,  with  a  large  quan- 
tity of  provisions  and  military  stores  belonging  to  the 
forces  of  Her  Majesty  which  had  fled  upon  our  approach. 
My  taking  possession  of  Bois  Blanc  was  an  act  preparato- 
ry to  the  making  of  an  intended  descent  upon  the  Pro- 
vince for  the  purpose  of  co-operating  with  the  force  then 
on  Navy  Island.  But  through  the  disobedience  of  my 
orders  by  some  of  the  individuals  who  were  there  acting 
as  officers  under  my  command,  having  lost  a  schooner  we 
possessed,  with  a  large  quantity  of  arms,  ammunition,  mili- 
tary stores  and  camp  equipage  prepared  for  the  expedi- 
tion ;.  and  finding  that  the  whole  of  the  body  of  men  I 
had  to  command  were  without  the  least  practical  know- 
ledge of  military  tactics,  or  of  the  details  of  an  army, 
and  utterly  ignorant  of  the  first  step  of  discipline,  and 
without  officers  in  any  vvay  competent  to  covnmand  them 
— on  the  10th  day  of  Janucrv  I  evacuated  the  post  I  ha(i 
taken  upon  the  Island  of  Bois  Blanc,  and  relinquished  my 


LETTER    TO    LORD    DURHAM. 


25 


sld  against 
nployed  on 
iber,  when 
on  the  De« 
ider  whose 
I  of  armed 
ty  to  assist 
if  January, 
here  found 
gained  un- 
9th,  with  a 
'  command, 
the  Detroit 
;e  of  Jppei 

forces,  hy 
[It  the  same 
large  quan- 
Ting  to  the 
ir  approach, 
t  preparato- 
)n  the  Pro- 
force  then 

nee  of  my 

lere  acting 
■chooner  we 

lition,  mili- 
le  expedi- 

y  of  men  1 

tical  know- 
an  army, 
ipline,  anii 

mand  then 
post  I  had 
uished  mv 


command  of  the  force  ;  and  since  said  lOih  day  of  Janu- 
ary, I  was  not  joined  to, or  connected  Avith,any  persons  or 
arrind  body  of  men,  within  the  limit:s  of  any  of  Her  Majes- 
ty's Provinces,  or  with  any  such  armed  body  of  men  collect- 
ed elsewhere  for  the  purpose  of  invading  any  of  the  Provin- 
ces of  Her  Majesty;  nor  was  I  afterwards  engaged  in 
aiding  any  of  Her  Majesty's  subjects  who  were  traitor- 
ously in  arms  against  Ker  Majesty. 

After  having  been,  the  brief  time  I  have  mentioned, 
connected  with  those  who  were  laboring  to  subvert  the  au- 
thority of  Her  Majesty  the  Queon  of  Great  Britain,  in 
the  Province  of  Upper  Canada,  surrendering  my  com- 
mand as  I  have  stated,  I  proceeded  to  the  city  of  Detroit 
in  the  State  of  Michigan,  at  which  place  and  its  vicinity 
I  remained  until  the  close  of  the  month  of  January,  when 
I  became  satisfied  the  insurrection  in  Upper  Canada  had 
entirely  failed  to  present  the  character  of  a  general  rising  of 
the  people,  as  I  had  anticipated  ;  and  then,  although  I  had 
up  to  that  time  contemplated  being  again  employed  as  a 
military  commander  in  behalf  of  the  Revolutionists  of 
Upper  Canada,  I  was  convinced  that  no  further  operations 
in  behalf  of  the  revolution  could,  at  that  time,  be  carried 
on  with  any  credit  to  the  leaders,  or  with  any  chance  of 
success  ;  and  accordingly,  early  in  the  month  of  February, 
I  tendered  to  the  persons  under  whose  orders  I  had  acted, 
a  resignation  of  the  military  command  with  which  I  had 
been  invested,  and  caused  the  fact  that  I  had  done  so,  to 
be  made  known,  by  a  notice,  to  that  effect,  published  in  a 
public  newspaper  of  the  city  of  Detroit,  at  which  place  I 
was  at  the  time.  But  having  learned  that  some  of  the 
Canadian  Refugees  remaining  at  Detroit  had  taken  the 
publication  of  my  resignation  and  retirement  from  the 
Patriots  to  be  merely  a  ruse,  and  that  they  supposed  1 
still  intended  j^further  to  act  with  them,  that  there  might 

3 


T" 


26 


LETTER    TO    LORD    DURHAM. 


he  no  mistake,  as  it  regarded  my  intentions,  on  or  about 
the  18th  day  of  February  last,  I  procured  to  be  held  at 
Detroit  a  m^.etmg  of  the  Canadian  Patriots  then  remain- 
ing in  that  city,  and  gave  to  them  a  formal  announcement 
of  the  resignation  I  had  made  of  my  command,  which  I 
accompanied  with  a  declaration  of  my  reasons  for  decli- 
ning further  connection  with  the  Canadian  Revolutionists 
in  any  of  their  intended  movements ;  and  with  such  an- 
nouncement of  my  resig7ialio7i  ended  all  connexion,  what- 
ever, of  myself  with  any  persons  concerned  in  the  politi- 
cal affairs  of  Upper  Canada,  or  ivith  any  movements  in 
the  Province,  as  I  now  assure  your  Lordship. 

I  would  not,  however,  have  your  Lordship  understan  x 
me  as  urging  that  I  had  engaged  in  the  cause,  and  then 
not  acted  to  the  extent  of  all  my  abilities,  (with  the  means 
I  was  able  to  control,)  to  subvert  Her  Majesty's  authority 
in  the  Canadas,  as  it  will  best  become  me  to  say,  that  I  did 
in  aid  of  the  Revolutionists  all  that  I  had  the  power  to  do 
or  effect,  in  such  manner  as  I  deemed  honorable  and  credi- 
table to  myself;  and  having  done  that,  I  left  them.  Then, 
as  the  insurrection  was   begun   without   my   instigation, 
and  has  been  continued  without  m"  aid,  as  it  must  be 
well  known  to  your  Lordship,  it  is  now  my  object  to  satisfy 
your  Lordship,  among  other  things,  that  aside  from  the  part 
I  admit  to  have  had  in  the  matter,  all  that  has  taken  place, 
would  have  so  occurred  if  I  had  not  been :  and  that  to  be- 
lieve I  have  held  a  controlling  influence  in  any  one  move- 
ment oftheRevolutionistsof  these  Provinces,  or  with  those 
of  my  countrymen  who  were  disposed  to  aid  them,  is  as 
preposterous  as  it  would  be  to   suppose   the  raft  floating 
down  the  current  of  the  river  influenced  the  waters  in 
their  course  ;  or  that  the  ship  wafted  on  the  waves  of  the 
ocean  directed  the  winds  of  heaven. 


-If- 


■I 


LETTER    TO    LORD    DURHAM. 


27 


or  about 
i  held  at 
I  remain- 
mcement 
,  which  I 
for  decli- 
Uitionists 
such  an- 
ion^ what- 
the  politi- 
)eme7its  in 

mderstan  i 
,  and  then 
the  means 
5  authority 
,  that  I  did 
lower  to  do 
and  credi- 
2m.  Then, 
nstigation, 
must  be 
t  to  satisfy 
m  the  part 
iken  place, 
that  to  be- 
one  move- 
with  those 
lem,  is  as 
ft  floating 
waters  in 
ves  of  the 


Having,  as  I  have  slated,  disconnected  myself  from  the 
Canadian  Patriots,  on  or  about  the  20th  of  February,  I 
left  Detroit  with  a  view  to  return  to  the  city   of  BufTalo, 
in  the  State  of  New- York,  which  was  then  my  place  of 
residence.     When  I  had  arrived  at  Monroe,  a  small  vil- 
laL'^e  about  forty  miles  cast  from  Detroit,  I  was  robbed  of 
my  baggage,  with  which  I  lost  my  whole  wardrobe,  with 
papers  and  other  property  to  the  value  of  $1,200,  or  more. 
Then,  for  the    furtherance  of  a   measure  to  recover  my 
property,  I  returned  to  Detroit,  to  which  place,  I  had  rea- 
son  to  believe,  the  robbers  of  my  baggage  had  gone.     At 
\  Detroit,  and    in   its    vicinity,  I  remained    until  the  3d  of 
March,  when  I  learned  that  the  individuals  whom  I  was 
seeking  to  arrest,  and  who,  from  the  best  information  I 
had   received,  I  did   not    doubt   were  the   persons    who 
had  robbed  me  of  my  baggage,  had  fled  towards  San- 
dusky  in  Ohio ;  and  early  on  the  morning  of  the  next 
I  day,  (4th  of  March,)  in  order  to  intercept  them  at  San- 
I  dusky   I   attempted    to   cross    on    the  ice   from  Gibral- 
I  ler  in  Michigan,  to  Sandusky,  by  which  means  I  could 
fhave    gained    Sandusky,    as   I   was   informed,   by   less 
/^than  half  the  distance  of  the  route  by  land;  and  in  much 
|less  time  than  it  was  possible  for  the  persons  whom  I  was 
"seeking  to  apprehend,  to  arrive  at  that   pi.,      with  any 
Iconveyance,  whatever,  by  the  road  I  was  assured  they  had 
Igone  ;  and  when  I  had  proceeded  down  along  the  shores 
fof  the  United  States  the  distance  of  about  sixteen  miles 
ibelow  Gibralter,  and  when  I  was,  (as  I  then  supposed, 
land  now  still  believe,  upon  the  evidences  I  possess,  and  on 
fthe  examination  of  a  chart  of  the  head  of  Lake  Erie  and 
vfthe  adjacent  shores,)  decidedly  within  the  limits  and  juris- 
diction of  the  United    States, (1.)  I  was  pursued  and  cap- 

-*!    (I.)  Upon  my  being  brought  before  Sir  F.  B.  Head,  on  my  nrrival   at 
•Toronto,  i  urged  to  him  the  fact  that  I  hod  been  captured  within  the  lim- 


.!rn 


28 


LETTER    TO    LORD    DURHAM. 


i-ji 


'■m 
■$ 


tured  by  a  party  of  armed  men  under  the  command  of  one 
John  Prince,  an  officer  of  Her  Majesty's  Militia  of  the 
Province  of  Upper  Canada. 

At  the  moment  of  my  being  thus  captured  I  protested 
to  the  persons  by  whom  I  was  taken,  that  I  was  at  the  time 
within  the  limits  of  the  United  States  ;  and  gave  them  no- 
tice that  I  was  an  American  citizen,  then  'peaceably  pursu- 
ing my  oiun  private  business ;  and  that  /  was  in  no  ivay 
connected  with  the  Patriots,  or  with  any  movements  of  the 
Canadian  Revolutionists.  I  had  thought  that  being  within 
the  limits  of  my  own  country  would  have  proved  a  protec- 
tion to  my  person — but,  nevertheless,  Prince  and  his  party 
persisted  in  my  capture,  and  took  me  a  prisoner  to  Fort 
Maiden  in  the  Province  of  Upper  Canada. 

I  was  in  no  kind  of  military  array  when  captured,  nor 
had  I  any  person  in  my  company,  except  one  individual, 
a  youth  who  resided  at  the  city  of  Albany  in  the  State 
of  New- York,  and  who  was  a  native  born  citizen  of  the 
United  States ;  and  as  for  arms  for  offence,  we  had  none, 
not  even  such  as  to  defend  ourselves  with.  We  had  neith- 
er pistols  nor  fire-arms  of  any  description;  though,  it  was 
true,  we  had  in  our  possession  two  old,  futile,  inefficient 
and  edgeless  swords,  which  we  had  found  at  a  public  house 
on  our  way  from  Detroit,  and  which  we  had  taken  intc 
possession  solely  from  the  circumstance  of  their  being  my 
private  property — and  not  to  be  used  as  matter  of  offence 
or  defence. 

Shortly  after  my  being  taken  a  prisoner  to  Fort  Maiden 
I  was  removed  to  the  city  of  Toronto,  where  immediately 
upon  my  arrival,  by  an  order  of  Sir  F.  B.  Head,  thei 


its  of  the  United  States,  at  a  time  vvlien  I  was  in  no  manner  connectc: 
with  the  Revoluiionists  of  the  Province;  and,  liierefore,  thati  ought  to  b 
Fet  at  liberty  on  the  shores  of  my  own  country,  wit!  ut  further  deter 
lion.  His  reply  was — "  they  had  me — and  my  capture  was  justifiable  evt 
if  I  had  been  taken  in  the  city  of  New-Yorii." 


LETTER    TO    LORD    DURHAM. 


29 


nd  of  one 
tia  of  the 

protested 
2t  the  time 
i  them  no- 
bly  pursu- 
ill  no  tvay 
lents  of  the 
nno-  within 
d  a  protec- 
id  his  party 
ner  to  Fort 

iptured,  nor 
I  individual, 
n  the  State 
tizen  of  the 
<e  had  none, 
e  had  neith- 
ugh,  it  was 
,  inefficient 
lublic  house 
Id  taken  intc 
ir  being  my 
X  of  ofTence 

'ort  Maiden 
limmediateh 
I.  Head,  thei 


Inner  connectc; 

liailought  tob 

It  further  dctvi 

1  justifiable  evt 


,  Lieutenant    Governor   of  that    Province,  I  was  tried  by 
what  was  called  a  Militia  General  Court  Martial,  (which 
court  consisted  of  but  eight  members  q\z\\x%\wc  of  the  Pre- 
sident thereof,)  under  certain  statutes,  as  I  was  informed, 
passed  by  the  Provincial  Parliament  of  the  Province  of 
Upper  Canada,  upon  a  charge,  a  copy  of  which  was  fur- 
nished me  in  the  words  and  figures  following,  to  wit  : — 
"  Charge — That  Thomas  Jefferson   Suther'  nd,  being  a 
^citizen  of  the  United  States  of  America,  (the  said  United 
^  States  of  America,  being  at  peace  with  the  United  King- 
dom  of  Great  Britain  and   Ireland,)  and   having  joined 
fhimself,  on  or   about   the  26th  day  of  December  last  at 
*Navy  Island,  in  the  District  of  Niagara,  in  the  Province 
^of  Upper  Canada  to  William  Lyon  Mackenzie,  and  others, 
unknown   subjects   of  our    Sovereign  Lady  the  Queen, 
who    were  then  and  there  traitorously  in  arms  against 
Her  Majesty  after  the  12th  day  of  January  last,  within 
Jthe  limits  of  the  Province  aforesaid,  was  in  arms  against 
pier  Majesty,  against  the  form  of  the  Statute  in  such  case 
Imade  and  provided."  "A  true  copy."  (Signed,)  "  James 
^itz  Gibbon,  Judge  Advocate." 

I  I  was  also  informed  by  the  said  Court  Martial,  that  the 
^)harge  upon  which  I  was  tried,  was  framed  under  a  sta- 
tute of  the  Province,  which  was  passed  on  the  12th  day 
f  January,  A.  D.  1838;  a  copy  of  which  was  also  deli- 
ered  me  by  the  said  Court  Martial,  bearing  the  title  of 
An  act  to  protect  the  inhabitants  of  this  Province  against 
wlcss  aggression  from  the  subjects  of  foreign  countries 
'^  peace  with  Her  Majesty." 

V    The  first  section  of  this  act  under  which,  as  I  was  in- 

<|brmed ,  I  was  put  upon  trial,  was  in  these  woi  ds  and  figures, 

%)  wit :  "  Whereas  a  number  of  persons  lately  inhabiting 

the  State  of  New- York,  or  some  one  of  the  other  United 

States  of  America,  have,  within  the  said  State  of  New- York, 

3* 


30 


LETTER    TO    LORD    DURHAM. 


lately  enlisted  or  engaged  thembolvcs  to  serve  as  soldiers, 
or  have  procured  others  to  enlist  or  engage  themselves  to 
serve  as  soldiers,  and  have  within  the  said  state  of  New- 
York,  collected  artillery,  arms  and  ammunition,  and  made 
other  preparations  for  a  hostile  invasion  of  this  Province  un- 
der the  pretext  of  assisting  certain  traitors  who  have  fled 
from  this  Province  to  the  said  United  States  ;  and  whereas, 
the  said  persons  without  the  authority  of  their  Govern- 
ment,   and    in  defiance  of  its  expiess    injunctions,  have 
actually   invaded    this   Province,    contrary    to  the    faith 
and   obligation   of  the    treaties    subsisting  between    the 
United  Kingdom   of  Great  Britain  and  Ireland  and  the 
said  United    States,  and  during  the  continuance   of  the 
relations  of  amity  and  peace  between  the  two  countries: 
and  whereas  it  is  necessary  for  protecting  the  peace  and 
security  of  this  Province  to  provide  for  the  prompt  pun- 
ishment of  persons  so  offending :    Be  it  enacted  by  the 
Queen's  Most  Excellent  Majesty,  by  and  with  the  advice 
and  consent  of  the  Legislative  Council  and  Assembly  of 
the  Province  of  Upper  Canada,  constituted  and  assembled 
by  virtue  of,  and  under  the  authority  of  an  act  passed  in 
the  Parliament  of  Great  Britain,  entitled,  *  An  act  to  re- 
peal certain  parts  of  an  act  passed  in  the  fourteenth  year 
of  His  Majesty's  reign,  entitled  an  act  for  making  more 
effectual    provisions  f)V  the  Government  of  the  Province 
of  Quebec  in  North  America,  and  to  make  further  provi- 
sions for  the  Government  of  the  said  Province,  and  by  the 
authority  of  the  same,'  That  if  any  person  being  acitizen  or 
subject  of  any  foreign  state  or  country  at  peace  with  the 
United  Kingdom  of  Great  Britain  and  Ireland,  having 
joined  himself  before  or  after  the  passing  of  this  actj  to 
any  subjects  of  our  Sovereign  Lady  the  Queen,  Her  Heirs 
or  Successors,  who  are,  or  hereafter  may  be  traitorously  in 
arms  against  Her  Majesty,  Her  Heirs  or  Successors,  shall 


LETTER    TO    LORD    DURHAM. 


31 


ioldiers, 
;elves  to 
)f  New- 
id  made 
iuce  un- 
lave  fled 
ivhereas, 
Govern- 
ns,  have 
he    faith 
,'een    the 
and  the 
e   of  the 
ountries: 
eace  and 
mpt  pun- 
d  hy  the 
he  advice 
bembly  of 
issembled 
passed  in 
act  to  re- 
enth  year 
ting  more 
Province 
er  provi- 
nd  by  the 
citizen  or 
with  the 
dy  having 
is  act  J  to 
er  Heirs 
rously  in 
ors,  shall 


after  the  'passing  of  this  act  be  or  continue  in  arfns  agai?ist 
Her  Majesty,  Her  Heirs  or  Successors,  ivithin  the  Pro- 
vinc€,  or  commit  any  act  of  hostility  therein,  then  it  sliall 
and  may  be  lawful  for  the  Governor  of  this  Province  to 
order  the  assembling  of  a  Militia  General  Court  Martial 
for  the  trial  of  such  person,  agreeable  to  the  militia  laics 
of  this  Province ;  and  upon  being  found  guilty  by  such 
Court  Martial  of  offending  against  this  act,  such  persru 
fllhall  be  sentenced  by  the  said  Court  to  suffer  death,  or 
Much  other  punishment  as  shall  be  aivardcd  by  the  Court. ^^ 
I  was  also  furnished  by  the  said  Court  Martial  with 
|i  copy  of  another  act  of  the  Provincial  Parliament  of  the 
province  of  Upper  Canada,  bearing  date  the  6th  day  of 
$flarch,  A.  D.  1838,  {two  days  after  my  capture,)  the  same 
being  a  code  of  "Militia  Laws  of  the  Province,"  under 
one  of  the  provisions  of  which  act,  I  was  informed 
l)y  the  said  Court  Martial,  the  same  had  been  organized  ; 
|[nd  under  the  provisions  of  this  law  of  the  6th  of  March, 
%iQ  oath  administered  to  the  President  and  members  of 
pie  said  Court  Martial  was  framed,  and  couched  in  the 
frords  following,  to  wit :  "  You  A.  B.  do  swear  that  you 
yill  administer  justice  to  the  best  of  your  understanding 
|[i  the  matter  now  before  you,  according  to  the  evidence, 
0id  the  Militia  Laws  now  in  force  in  this  Provirice,  with- 

rt  partiality,  favor  or  affection,"  &c. 
Now,  if  we  should  suppose  that  I  could  be  properly 
iiied  by  a  Court  Martial  organized  under  a  law  passed 
mfter  my  capture ;  and  that  this  law  of  the  I2th  of  Janu- 
ljk\,  under  the  provisions  of  which  the  Charge  upon  which 
l?,was  tried,  was  drawn  up,  had  been  constitutionally  enact- 
i$,  your  Lordship  will  perceive  that  in  order  regularly  to 
Anvict  me  of  the  Charge  preferred  against  me,  it  was  ne- 
jssary  to  establish  by  proofs — 
1st.  That  I  was  a  citizen  or  subject  of  some  foreign 


32 


LETTEP    TO    LORD    DURHAM. 


m 


i  • 


stale  or  ccnintry   at  peace  with   the  United  Kingdom  oj 
Great  Britain  and  Ireland. 

2d.  That  I  had  joined  myself,  before  or  after  the  passing 
of  the  act,  to  some  of  the  subjects  of  Her  Majesty  the 
Qiieeyi,  who  were  then  traitorously  in  arms  against  Her 
Majesty;  and  had  continued  so  to  be  in  arms  after  the 
passing  of  the  act,  (12th  of  Jan.   1838.) 

3c?.  That  after  the  passing  of  the  act,  (12th  Jan.)  /  had 
been  or  continued  in  arms  against  Her  Majesty  within  the 
Province  of  Upper  Canada,  or  committed  some  act  of  hos- 
tility therein  : 

And  these  were  the  special  averments  of  the  Charge 
upon  which  I  was  tried. 

The  only  testimony  adduced  upon  my  trial  before  the 
Court  Martial  to  sustain  ih.Q  first  averment  of  the  Charge 
preferred  against  me,  and  to  prove  the  facts  necessary  so 
to  be  established  on  that  point  in  order  to  bring  me  with- 
in the  provisions  of  the  act,  under  which  it  was  professed 
I  was  tried,  was  the  proof  that  I  had,  after  my  capture,  ad- 
mitted "  that  I'lvas  a  citizen  of  the  United  States  of  Ameri- 
ca,^^  which  testimony  was,  perhaps,  so  far  as  it  went,  suffi- 
cient in  itself.  But,  then,  there  was  no  proof  or  evidence  of 
any  kind  given  or  offered  upon  my  trial  to  establish  the  fact 
that  the  United  States  of  America,  "  was  a  state  or  coun- 
try at  peace  luith  the  United  Kingdom  of  Great  Britain 
and  Ir eland .^^ 

Here  I  may  remark  to  your  Lordship,  that  it  is  a 
rule  of  law,  as  I  believe,  that  every  averment  of  a  count 
in  an  indictment,  (and  consequently  every  averment  of  a 
Charge  before  a  Court  Martial,)  must  be  proven. (2.) 

(2. )  It  is  an  established  rule  of  law  that  all  those  facts  necessary 
to  have  existed  in  order  to  constitute  nn  offence,  must  be  set  out  in  the 
indictment,  (or  charge,)  and  must  be  proven.  In  the  Ist  of  Starkie,  p. 
444,  it  is  said,  "  when  there  is  a  failure  of  evidence  to  establish  any  one 
essential  averment,  the  court  direct  an  acquital  in  a  criminal  case.  Same 


LETTER    TO    LOUD    DURHAM. 


33 


To  sustain  the  second  averment  of  the  Charge  and 
to  prove  the  facts  necessary  to  be  established  on  the  part 
of  the  prosecution  in  order  to  bring  me  within  the  provi- 
sions of  the  act,  one  Matthew  Hayes  was  called  by  the 
Judge  Advocate,  and  sworn  as  a  witness,  who  testified, 
substantially — '*  that  on  tlie  21st  day  of  December  last, 
(1837,)  he  went  upon  Navy  Island,  in  the  Province  of 
Upper  Canada — that  after  he  arrived  upon  the  Island  he 
saw  William  Lyon  Mackenzie,  who  asked  him  what 
brought  him  there — that  he  told  Mackenzie  he  came  to 
see  the  Island — that  Mackenzie  told  him  he  could  not  leave 
the  Island — that  he  saw  me  on  the  beach  when  he  landed 
on  the  Island — that  he  saw  me  on  Navy  Island  from  the  21st 
to  the  2Sth  or  29th  of  December — could  not  be  positive 
which — that  I  was  in  the  capacity  of  second  in  command 
of  the  Patriot  forces — that  I  was  Brigadier  General — that 
he  saw  me  leave  the  Island — that  I  went  towards  the 
shores  of  New-York — that  I  addressed  the  men  on  the 
Island  the  day  before  I  left  it — and  said  *  they  2vere  em- 
barked in  a  glorious  cattse^ — and  '  implored  the  God  of 
Battles  to  direct  and  prosper  them'' — that  while  I  was 
there  I  wore  a  cavalry  sword  slung  in  the  usual  form — 
that  there  were  no  people  in  uniform  on  the  Island — 
that  those  on  the  Island  were  generally  armed  with  guns 
swords,  pistols  and  pikes — that  some  had  charge  of  can- 
non— that  he  saw  Mr.  Gorham  on  the  Island  who  acted  as 
aid-de-camp  to  GeneralVan  Rensselaer,  and  who  told  him 
he,  (Gorham,)  came  from  New-Market  in  Upper  Canada 
— that  there  were  about  forty  persons  on  Navy  Island 
whom  he  understood  were  British  subjects — that  many 
of  them  told  him  so — that  they  formed  a  part  of  the  hos- 
tile force — but   that  all  the  knowledge  he  had  that  any 

authority — p.  371,  it  is  also  declared,  "  that  every  material  and  essential 
allegniion,  and  every  tircumstance  de»criptive  of  its  identity,  niual  be 
proven  as  averred." 


34 


LETTER    TO    LORD    DURHAM. 


person  lie  saw  on  Navy  Island  at  the  time  1  was  there 
were  British  subjects  was  that  they  told  him  so — that 
General  Van  Rensselaer  was  in  command  on  Navy  Island 
— but  that  he  was  sometimes  absent — and  then  I  com- 
manded— that  General  Van  Rensselaer  was  an  American 
citizen  as  he  understood — that  William  Lyon  Mackenzie 
l:eld  no  military  command  on  the  Island — that  he,  Haijes, 
did  not  go  to  Navy  Island  for  the  purpose  of  joining  th<.' 
Patriots — that  when  there  I  told  him  not  to  make  himseli 
uneasy — that  he  might  stop  in  my  quarters — that  he  wa< 
detained  there  against  his  will — that  he  considered  him- 
self while  there  a  prisoner,  not  being  allowed  to  go  off— 
that  I  appointed  him  to  the  office  of  Adjutant — which  he 
accepted  through  fear — and  continued  to  do  the  duty  until 
1  had  left  the  Island — and  until  he  was  displaced  on  ac- 
count of  not  acting  more  efficiently — that  he  left  Navy  Is- 
land 071  the  4:th  day  of  Jamiary — after  Macke?izie  had  lefl 
it,  by  leave  of  General  Van  Rensselaer — that  he  was  not 
affain  on  the  Island — that  he  had  never  afterwards  seen 
any  of  the  persons  whom  he  saw  on  Navy  Island  while  I 
was  there,  in  any  part  of  Her  Majesty's  dominions,  or 
elsewhere — and  that  he  had  not  seen  me  since  I  had  left 
Navy  Island,  (28th  December,)  until  he  saw  me  present  in 
Court." 

But,  there  was  no  evidence  adduced  upon  my  trial  be- 
fore said  Court  Martial  to  prove  "  that  William  Lyon 
Mackenzie  was  a  subject  of  Her  Majesty ;"  and  other  than 
the  preceding  statement  of  the  testimony  of  Hayes,  there 
was  no  proof  given  to  establish  the  fact  as  alleged  "  thai 
V  any  of  the  persons  who  were  on  Navy  Island  at  the  time  I 
was  there,  tvere  subjects  of  Her  Majesty  the  Queen  ofGreai 
Britain  and  Ireland^  Nor  was  there  any  item  of  testi- 
mony or  proof  given  on  my  trial  before  said  Court  Mar- 
tial to  show  "  that  William  Lyon  3Iackenzie,or  any  other  j 


ii^li^  ii^t^i: 


LETTER    TO    LORD    DURHAM. 


{15 


vas  there 
so — that 
vy  Island 
1   I  com- 
\merican 
[ackeiizie 
e,  Hayes, 
mnng  the 
:c  himseli" 
at  he  was 
ered  liim- 
0  go  off— 
—which  he 
duty  until 
ced  on  ac- 
y.  Navy  Is- 
:ie  had  left 
le  was  not 
vards  seen 
nd  while  1 
ninions,  or 
I  had  left 
present  in 

y  trial  be- 

lliam  Lyon 

lother  than 

lyes,  there 

red  "  thai 

the  time  I 

\n  of  Great 

of  testi- 

lourt  Mar- 

a7iy  other 


aUcgr.d  suhjccl  of  Her  Majesty,  with  whom  I  was  charged 
to  have  been  joinrd  in  arms  agaiiist  Her  Majesty^  on 
Nary  Island^  were  at  the  date  of  the  passage  of  the  act, 
(12th  January,)  or  any  time  thereafter,  traitorously  in 
arms  against  Her  Majesty,  at  Navy  Island,  or  at  ajiy  other 
)1ace  tvifhin  the  Province  of  Upper  Canada,''''  as  averred 
in  the  Charge,  and  as  it  was  necessary  to  have  been  es- 
tablished on  the  part  of  the  prosecution  against  me  in  or- 
der to  bring  me  pr  iperly  within  the  the  provisions  of  the 
ct  under  which  it  was  professed  I  was  tried.  Quite  the 
contrary,  however,  was  shown,  as  your  Lordship  will 
readily  perceive  by  the  testimony  of  Hflye^  ;  who  swore 
that  "  he  left  Navy  Islaiid  on  the  ^th  of  January,  (eight 
[lays  before  the  passage  of  the  act,)  previous  to  which  lime 
Macke7izie  had  left  the  Island,  and  he,  (Hayes,)  had  never 
%fter  he  left  Navy  Island,  (4th  of  January,)  see?i  Macken- 
zie or  any  other  of  the  persons  whom  he  had  seen  on  the 
'sla7id  zchile  I  was  there,  in  arms  in  any  part  of  the  Pro- 
ince  of  Upper  Canada,  and  that  he  had  no  knoioledge  of 
ny  snch  persons,  whatever,  since  he  left  Navy  Island ;" 
nd  as  the  testimony  of  this  Hayes  might  be  supposed  to 
pply  to  the  3d  averment  contained  in  the  Charge,  your 
ordship  will  perceive  he  swears  positively,  "  that  he 
adnot  seenme  since  heleft  Navy  Island,  (4th  of  January,) 
ntil  he  then  saw  me  in  Court,  on  my  trial." 
To  sustain  the  3d  averment  of  the  Charge,  as  well  as 
0  prove  other  facts  necessary  to  be  established  to  bring 
we  within  the  provisions  of  the  act,  Joh?i  Prince,  the  in- 
ividual  who  commanded  the  party  by  whom  I  was  cap- 
ured,  and  Prideaux  Girty,  who  was  also  of  that  party (3.) 

(3.)  In  the  first  instance,  Major  Rudyard  with  Lieutenant  James  and 
lieutenant  Wright,  were  sent  over  from  Maiden  to  Toronto,  to  be  used 
in  witnesses  against  me  on  ray  trial,  in  order  to  establish  the  circum- 
klances  of  my  capture.  But,  Prince  and  Girty  having  arrived  at  Toron- 
lo  before  the  court  had  commoncd  taking  testimony,  they  were  called 


36 


LETTER    TO    LORD    DURHAM, 


were  called  by  the  Judge  Advocate,  and  sworn   as  wit« 
nesscs  on  the  part  of  the  prosecution  against  me. 

Pri?ice  testified,  substunliuliy — "  that  on  the  llh  day  of 
March  last,  (1838,)  he  was  on  the  shores  of  Lalce  Eric,  at 
about  nine   viih.,   below   Arnherstburgh,  in  the  Western 
District  of  Upper  Canada,  when  he  saw  al   a  great  dis- 
tance^  two  objects  on  the  ice — that  he  was  proceeding  on 
towards  Aniherstburgh  in  company  with  G//7//,  and  con- 
tinued on  his  way  about  one  mile,  when  he  discovered  the  J 
two  objects  were  men — that  then  having  procured  fresh  1 
teams,  he  started  off  with  others  in  pursuit — that  he  ap- 
pruacliud  witliiu  one  hundred  yards  of  myself  and  anoth- j| 
er  individual  who  was  then  in  my  company — when  he'l 
and  one  Haggerty,  a  companion  of  his,  (Prince's,)  got  oulj 
of  their  sleighs  and  following  mc  with  their  guns,  hailed^ 
me,  and  commanded  me  and  my  companion  to  halt.  Thai 
we  did  so,  and  that  I  then  asked   '  what  do  you  want  .^'— 
and  said  '  lue  are  American  citizens  going  about  our  otcr  | 
business^ — that  he  then  told  me  to  consider  myself  hi; 
prisoner,  and  go  with  him — that  I  and  my  companion  diti 
so  without  any  resistance — but,  that  /  charged  him  wit 
having  captured  me  within  the  limits  of  the  U/iited  Statt 
— that  we  had  each  of  us  a  sword  but  no  other  kind  c 
weapons — that  at  the  time  of  viij  capture  I  ivas  ivalkin. 
towards  the  Canada  shore,  of  which  he  said,  I  was  withi: 
a  mile  and  a  half — that  the  place  at  which  I  was  capturec 
was  oppos.lt e  the  Canada  shore,  three  miles  below  Bar  Poin 
commonly  called  Hartly's  Point,  and  opposite  the  shore  { 
Michigan  at  or  near  Gibralter.     That  when  captured, 
was  one  mile  and  a  half  from  the  Canxida  shore,  and/o« 
and  a  half  miles  from  the  shore  of  Michigan^     Prim  i 
also  testified — "  that  at  the  moment  I  was  captured  by  hiir  ^ 

first;  and  the  Judge  Advocate  having  ascertained  that  the  first  named  c 
ficers  would  not  corroborate  the  testimony  given  by  Prince  ond  Girt; 
rested  the  prosecution  witliout  calling  them. 


LETTER    TO    LORD    DURHAM. 


37 


/  informed  him  I  had  been   robbed  of  my  baggage  at  Man- 

roCy  and  that  1  was  on  my  way  to  Lower  Sa/idusky^for 

the  purpose  of  intercepting  some  persons  who  had  been  con- 

verned  in  the  robbery ;"  and  further,  *'  tliat  nl  tho  lime  of 

my  capture,  I  was  travelling  in  a  south-easterly  direction — 

(ihe    direct    course,    from    whence    I    had    started,    to 

Sandusky — and  a    very   different    one  from   the  Canada 

shore — which  lay  due  north  from  the  place  where  I  was 

captured,)  that  at  the  time  of  my  capture^  I  was  tvithin  half 

a  mile  of  a  certaifi  schooner  lohich  was  then  frozen  in  the 

ice  at  the  head  of  Lake  Eric^  and  eight  or  7iine  miles  from 

the    Island   of  Bois   Blanc — [This    schooner   it    is   well 

I  known,  lay  at  the  time,  several  miles  within  the  lines  of 

[the  United  States.] — that  I  had  stated  on  an  examination 

I  at  Amherstburgh,    before    himself,  {Prince,)  Girty  and 

one  Lachlan,  all  justices  of  the   peace  of  the    Western 

[District  of  Upper  Canada,  on  the  day  next  after  my  cap- 

Iture — (substantially) — '  that  I  had  been  on  Navy  Island 

jwith  Van  Rensselaer  and  Mackenzie — that  I  had  served 

jlhere  as  second  in  commanri — that  I  had  left  Navy  Island 

)n  or  about  the   26th  of   December — that   I   had    then 

:ome  to  the  Western  Frontiers  where  I  took  command  of 

in  expedition  which  had  been  there  fitted  out — and  that 

rith  a  detachment   of  the  expedition  I  had  on  the  9th  of 

Fanuary  last,  taken  possession  of  Bois  Blanc  Island,  and 

lad  again  abandoned  it  on  the  10th — that  I  had  then  giv- 

jn  up  my  comnrand  and  gone  to  the  city  of  Detroit.'  " 

Prince,  also  produced  a  paper  on  which,  as  he  testified, 
»e  had  written  the  substance  of  what,  he  said,  were  my 
idmissions ;  which  paper  I  had  not  signed,  nor  been  asked 
[o  sign,  as  Prince  testified ;  and  he  also  produced  a  news- 
)aper  called  the  "  Detroit  Morning  Posf^ — which  had 
)een  published  in  the  city  of  Detroit  in  the  United  States; 
md  in  the  copy  of  the  newspaper  he  produced,  there  were 


23 


LETTER    TO    LORD    DURHAM. 


!tli: 


printed  certain  Despatches  and  Proclamations  over  my 
name,  which  he  testified  I  had  admitted  of  having  pub- 
lished ;  and  the  papers  were  all  received  and  admitted 
as  testimony  by  said  Court  Martial,  notwithstanding  I  ob- 
jected to  their  being  received,  on  the  ground  that  they 
^vere  irrelevant  and  improper  as  proof. 

The  testimony  of  Girty^  failed  to  corroborate  that  de- 
posed by  P'^'zce  in  many  important  respects ;  though  he, 
like  Priuce,  testified,  "  that  they  had  captured  me  within 
one  and  a  Iialf  miles  of  the  Canada  shore  ;"  (the  distance 
I  am  to  suppose,  they  had  agreed  upon^  to  call  it,)  though 
neither  pretended  to  have  measured  the  distance — nor  of 
having  obtained  any  certain  knowledge  of  the  location  and 
bearings  of  the  place.  ,  Girty  testified,  "  that  I  was  walk- 
ing, at  the  tinio  of  being  captured, /row  the  Canada  shore, 
down  the  lake,"  while  Prince  swore — "  that  I  was  going 
towards  the  Canada  shored  Girty  testified,  "  that  the 
nearest  place  on  the  Canada  shore  to  the  spot  where  I 
was  captured  was  Hartly^s  Point,''''  while  Prince  swo^^e — 
"  that  it  was  threp.  miles  below  Hartly^s  Point."  Girty 
testified,  "  that  the  nearest  point  on  the  shore  of  Michi- 
gan to  the  place  of  mycapiure  was  Point  Mouillee,"  while 
Prince  swore — "  that  it  was  at  or  near  Gibralter,"  several 
miles  above  the  place  designated  by  Girty.  Girty  testi- 
fied, *^  that  I  was  captured  jdo  iiiiles  from  the  schooner 
frozen  in  the  ice  at  the  time,"  while  Prince  sv/ore — "  thai 
I  was  captured  vnthin  half  a  mile  of  it."  Girty  testified, 
'"'•that  I  was  captured  within  four  and  a  half  miles  oj  | 
Bois  Blanc  Island,''''  while  Prince  swore — "  that  1  was 
captured  eight  or  nine  miles  helowthe  same  island."  There 
were  also  many  other  discrepancies  in  the  testimon}"-  de- 
posed by  Prince  andGirfy,  which  exhibited  ii  to  be  alto- 
gether a  matter  of  uncertainty — most  extravagantly  re- 
lated. 


Dur 
Esquir 
da,  wa 
ness ;  i 
charts, 
a  chart 
it  was 
there  w 
tvveen  ( 
was  adi 
and  anc 
cil,  whii 
line — ai 
were  foi 
this  was 
showing 
lion. 

There 
show  ho' 
in  the  n* 
tablishec 
manner 
of  Her  JV 
ously  in 
vince  of 
proof  set 
I  had   be 
of  Her  IV 
n  last,  (i 
been  wit 
been  on 
was  capt 
tility  thei 
On  mj 


LETTER    TO    LORD    DURHAM. 


39 


?r  my 
rpub- 
iiiltcd 
y  lob- 
L  thev 


lat  de- 
gh  he, 
within 
[Stance 
:hough 
-nor  of 
on  and 
3  vvalk- 
i  shore, 
3  going 
hat  the 
yhere  I 
wore — 

irtrty 
Michi- 

while 
several 
y  testi- 
chooner 
-"  that 
estified, 
miles  of 
it  1  was 

There 
on}'^  de- 
be  alto- 
ntly  re- 


During  the  proceedings  of  my  trial,  James  Macauley, 
Esquire,  Surveyor  Geieral  of  the  Province  of  Upper  Cana- 
da, was  called  by  the  Jud^^e  Advocate,  and  sworn  as  a  wit- 
ness ;  and  he  p  oduced  thc;i,  a  roll  of  drawings,  or  parts  of 
charts,  one  sheet  of  which,  he  testifitd — ^^  was  said  to  be 
a  chart  of  part  of  the  head  of  Lake  Erie  ;"  that,  on  which 
it  was  alleged,  I  had  been  captured.  On  the  chart 
there  was  a  line  marked  to  represent  the  dividing-  lino  be- 
tween Canada  and  the  United  States  ;  which  line,  however, 
was  admitted  by  the  Surveyor  General,  to  be  erroneous  ; 
and  another  line  was  marked  upon  the  chart  with  a  pen- 
cil, which  he  testified — "  he  understood  to  be  the  true 
line — and  that  the  sheets  of  drawings,  (or  charts,)  produced, 
were  found  by  him  among  the  records  of  his  ofifce;"  and 
this  was  all  he  testified  to  in  the  premises  ;  and  upon  this 
showing,  the  cause  was  rested  on  the  part  of  the  prosecu- 
tion. 

There  was  no  proof  given  on  my  trial  which  went  to 
show  how  far  the  dividing  line  between  the  two  countries, 
in  the  neighborhood  of  the  pi;  e  of  my  capture,  was  es- 
tablished from  the  Canada  shore  ;  or  that  I  was  in  any 
manner  connected,  at  the  time  of  my  capture,  with  any 
of  Her  Majesty's  subjects,  who  were  or  had  been,  traitor- 
ously in  arr.is  against  Her  Majesty,  within  the  said  Pro- 
vince of  Upper  Canada ;  nor  was  there  any  pretence  of 
proof  set  up  by  the  prosecution  on  my  trial,  to  show  that 
I  had  been  in  arms  against  Her  Majesty,  within  any 
of  Her  Majesty's  Provinces,  since  the  12th  day  of  Janua- 
ry last,  (date  of  passage  of  the  actj  or  that  I  had  ever 
been  within  the  Province  ;  (except  the  fact  of  my  having 
been  on  the  ice  at  the  head  of  Lake  Erie,  at  the  time  I 
was  captured,)  or  that  I  had  committed  any  act  of  hos- 
tility therein. 

On  my  part,  I  neither  called  witnesses  in  my  behalf,  nor 


;!!< 


I  i 
I   t 


I  i 


i  • 


40 


LETTER    TO    LORD    DURHAM. 


produced  any  kind  of  testimony ;  relying  for  my  defence  up- 
on the  evident  failure  of  the  testimony,  adduced  on  the  part 
of  the  prosecution,  to  sustain  the  CAa7'^e  preferred  against 
me  ;  with  the  several  objections  taken  by  me,  during  the 
trial,  to  the  proceedings  of  the  Court  Martial,  which  were 
briefly  as  follows : 

1st.   That  one  half  of  the  members  composing  the  Court 
had  not  before  sat  on  a  Court  Martial. 

2d.  That  the  President  of  the  Court  had  not  before  sat 
on  a  Court  Martial. 

These  objections  were  grounded  upon  information  I 
had  received,  that  the  President  of  the  Court  Martial, 
and  a  majority  of  the  members,  were  persons  who  had 
been  recently  appointed  to  office  in  the  Militia  of  the  Pro- 
vince of  Upper  Canada — that  they  had  been  b  ^  i  ^ 
days  in  military  employment — and  that  they  had  never 
before  sat  on  a  Court  Martial.  Although  these  facts 
were  not  disputed  nor  controverted  bj'  the  Court,  the 
members  objected  to  were  all  permitted  to  keep  their  seats 
as  m'jmbers  of  the  board.  The  objections  were  started 
in  accordance  with  the  practice  usual  in  the  organization 
of  Courts  Martial  in  the  British  Empire.  On  these  points, 
however,  it  is  true,  the  Militia  laws  of  the  Province  are 
silent ;  but  in  the  absence  of  any  statutory  provisions  on 
the  subject,  the  usual  course,  which  is  in  support  of  the 
objections  made,  in  mv  opinion,  ought  to  have  been  re- 
garded. The  Practice  of  Courts  Martial,  the  Articles  of 
War  of  the  nation,  and  the  Mutiny  Act,  are  and  ought 
to  be,  as  I  think,  the  guide,  in  the  absence  of  any  parti- 
cular statutory  enactments. 

^d.  That  one  of  the  members  of  the   Court,  a  Major 
Deioson,  was  at  that  time,  an  officer  in  the  regular  arviy 
of  Her  Majesty,  under  full  pay,  and  therefore  inelligill 
to  sit  on  a  Militia  General  Court  Martial. 


LETTER    TO    LORD   DURHAM. 


41 


[ice  up- 
lie  part 
igainst 
ing  the 
h  were 


e  Court 
fore  sat 

(lation  I   § 

Martial, 

rho  had 

he  Fro- 

^1    ,  k- 

id  never 

se  facts 

lilt,   the     ^ 

Bir  seats     '* 
started 

nization 

i  points, 

ince  are 

sions  on 
of  the 
)een  re- 
tides  of  I 
d  ought 
y  parti-  fm 

2  Major 
r  army 
elligihi 


This  objection  was  made  in  accordance  with  a  provi- 
sion of  the  statute  of  the  Province,  and  grounded  upon 
information  I  had  received  that  Major  Dewson,  was  at  the 
time  a  Lieutenant  and  Quarter  Master  of  Her  Majesty's 
\5thKegt.  of  foot  ;  (his  name  appearing  on  the  army  list 
as  such ;)  and  that  he  was,  as  such  Quarter  Master,  re- 
ceiving full  pay.  But,  notwithstanding  the  fact  upon 
which  this  objection  was  based  was  not  denied  by  Major 
Dewson,  nor  contradicted  by  the  Court,  he  was  allowed  to 
retain  his  place  on  the  Court  Martial,  as  a  member  there- 
of.(4.) 

By  the  only  Provincial  law  which  was  in  force  at  the 
time  of  my  capture,  applicable  to  my  case,  (48  Geo.  3d, 
Chap.  1,  Sec.  23,)  it  is  provided,  "  that  no  officer  serving 
ill  any  of  Her  Majesty's  other  forces,  shall  sit  on  any 
Militia  Court  Martial,"  &c.  (5.) 

4?A.  That  the  act  of  the  Frf^vincial  Parliame^it  of  Up- 
per CaTuida  of  the  12th  of  January,  under  the  provisions 
of  Vy'hich  I  was  tried,  was  unconstitutiorml,  and  unauthor' 
ized  by,  and  unfounded  upon  any  delegated  authority  from 
the  Goverr.ment  of  Great  Britain  to  constitute  it  a  law. 

The  ground  I  assume,  my  Lord,  is,  that  a  law  affecting 
the  rights  of  foreigners  can  only  emenate  from  the  parent 


;  ], )  By  the  common  law  of  England,  though  jurors  may  bo  challenged, 

■1  li'lges,  or  justices  cannot;  but  in  the  courts  whero  the  proceedings  are 
vriit  \  on,  according  to  the  civil  and  common  laws,  the  judges,  who  like 
t;  1  ienibers  of  Courts  Martial,  are  also  judges  of  facts,  may  l)e  challenp;ed, 
anJ  i;i  V  commonly,  of  their  own  accord,  decline  sitting  as  judges  in  a 
cause  where  they  may  be  supposed  to  be  under  the  least  bias  or  partiality 
to  one  side  or  the  other. — /.  Coke's  Inst.  p.  294-677. 
(5.)  An  extract  from  the  Ml'itia  Laws  of  the  Provmceof  Upper  Canada, 

passed  March  16,  1808— o«rf//J  force  unLfl  the  sixth  day  of  March,  1838. 

"  Provided  always,  that  the  judgment  ofevery  such  Court  Martial  shall 
pass  with  the  concurrenceof  two-thirds  of  the  members,  and  flhall  not  be 
put  in  execution,  until  the  Governor,  Lieutenant  Gvernor,  or  person  ad- 
ministering the  Government,  has  approved  thereof:  Provided  always, 
that  no  officer  serving  in  any  of  His  Majesty's  other  forces,  shall  sit  on  any 
Court  Martial  upon  the  trial  of  any  officer  or  private  man  serving  in  the 
Militia." 

4* 


t 


w 


WFM 


42 


LETTER    TO    LORD    DURHAM. 


State,  (if  even  from  such  sovereign  state  it  may,)  and  that 
a  case  like  mine,  with  all  the  facts  of  the  Charge,  as  alleged, 
and  intended  to  have  been  alleged,  fully  and  sufficiently 
set  out,  and  substantially  proved,  (which,  however,  in  my 
case  I  contend  have  in  no  manner  been  done,)  is  only  for 
negotiation  between  Great  Britain  and  the  United  States, 
of  which  latter  country  I  am  recognized  to  be  a  citizen. 

If  the  Province  of  Upper  Canada  has  a  right  to  enact 
or  create  such  a  law  as  this  act  of  the  12th  of  January,  then 
must  any  and  all  of  Her  Majesty's  forty  Colonies  have 
equal  privileges.  The  exercise  of  such  privileges,  how- 
eve'  it  is  self-evident,  would  involve  the  parent  state  in 
inex^/  i  !e  difficulties,  clashing  with  its  treaties  with  for- 
eign stu.  ,  and  in  a  variety  of  other  ways  interfering 
with  that  power  and  sovereignty,  which  it  can  alone  pos- 
sess. Upon  examination,  it  appears  to  me  that  the  con- 
stitutional act  of  this  Colony,  (31st  Geo.  3d,)  has  clearly 
defined  the  powers  given  to  the  Provincial  Legislature  ; 
and  limited  its  control  to  certain  matters  of  self  govern- 
ment ;  such  laws  not  being  in  contravention  to  the  pro- 
visions of  that  act,  and  not  repugnant  to  the  laws  of  the 
empire  state.  Its  treatise  are  parts  and  portions  of  such 
laws,  and  can  only  be  made  by  the  superior  power.  See 
Fa«eZ,;>.  192.  ^:  -      ..  -  _  .„    ^ 

•  By  the  treaty  now  existing  between  the  United  King- 
dom of  Great  Britain  and  Ireland  and  the  United  States 
of  America,  ratified  24th  of  June  1795,  commonly  called 
Jayh  Treaty,  it  is  provided,  (3d  article,)  "  that  it  shall  at 
all  times  be  free  to  His  Majesty's  subjects,  and  to  the  citi- 
zens of  the  United  States,  dwelling  on  either  side  of  the 
boundary  line,  freely  to  pass  or  repass,  by  land,  or  inland 
navigation,  into  the  respective  territories  and  countries  of 
the  two  parties  on  the  Continent  of  America,  and  to  navi- 
gate  all   the   lakes,    rivers,  and    waters   thereof,"   &c. 


LETTER    TO    LORD    DURHAM. 


41^ 


id  that 
lUeged, 
ciently 
,  in  my 
)nly  for 
States, 
izen. 
;o  enact 
ry,  then 
>s  have 
;s,  how- 
state  in 
viih  for- 
erfering 
Dne  pos- 
the  con- 
clearly 
slature  ; 
govern- 
the  pro- 
3  of  the 
of  such 
sr.     See 

d  King- 
States 
called 
Ishall  at 
[he  citi- 
of  the 
inland 
[tries  of 
|o  navi- 
."   &c. 


Then,  certainly,  as  I  trust  your  Lordship  will  allow,  a 
right  derived  from  such  a  i^ource,  cannot  be  abrogated, 
however  expedient  it  might  be,  by  a  less  authority  than 
the  one  which  had  created  it.  The  Queen,  as  supreme 
head  of  the  empire,  has  the  prerogative  of  making  war 
and  peace,  treaties,  leagues  and  alliances  with  foreign 
states ;  and  the  Colonists  are  as  fully  bound  by,  and  sub- 
ject to,  the  consequences  thereof  as  the  inhabitants  with- 
in the  realm.  See  B.  Edward's,  Vol.  2,  p.  353,  cited  in 
Clark*s  Colonial  Laws,  p.  47. 

It  is  a  restriction  imposed  by  the  commission  and  in- 
structions of  the  Governor  of  the  Province,  "  that  the 
laws  made  in  the  Colony  hall  not  be  repugnant  to  the  laws 
of  EnglandJ*''  This  restriction  is  enforced  by  statute  3c? 
and  4:th  Will.  Ath,  Chap.  59,  Sec.  56 — and  has  regard  to 
the  laws  of  all  the  Colonies  of  Great  Britain,  whatever. 
The  only  exception  to  this  rule,  at  the  time,  was  in  the 
case  of  the  Province  of  Lower  Canada,  established  by 
1st  Will.  4ith,  Chap.  20,  cited  in  Clark^s  Colonial  Laws,  p. 
27  ;  and  upon  referring  to  the  4:6th  Sec.  of  the  ^Ist  Geo.  3d, 
it  will  be  made  evident  to  your  Lordship,  that  no  such 
powers  as  have  been  assumed  by  the  Legislature  of  the 
Province  of  Upper  Canada  in  passing  the  act  under  con- 
sideration, could  have  been  intended  to  be  delegated  by 
the  mother  country.  •   s' 

It  seems  to  have  been  contemplated  that  the  Provincial 
Legislature  might  be  disposed  to  pass  laws  affecting  the 
empire  at  large  in  its,  commerce.  Therefore,  thai;  power 
was  withheld  by  the  above  section  ;  from  which  it  may 
be  inferred,  fairly  and  clearly,  that  for  the  general  benefit 
of  the  empire,  the  power  of  regulating  its  commerce 
should  continue  to  be  exercised  by  Ffer  Majesty  and  the 
Parliament  of  Great  Britain,  that  the  solemn  obligation  of 


■M 


1  I 
1   I 


)1 


!i. 


44 


LETTEE    TO   LORD   DURHAM. 


^"'m 


va      ^'1 


treaties  should  not  be  touched  or  interfered  ivith,  by  so  stib- 
ordinate  a  power  as  the  Legislature  of  a  Colony. 

5th.  That  the  Charge  preferred  against  7ne,  was  not  suf- 
ficiently specific,  (IS  required  by  the  act  under  which  it  was 
framed. 

By  reference  to  the  act  of  the  12th  of  January,  and  the 
Charge  upon  which  I  was  tried,  it  will  be  perceived  the 
Charge  is  defective,  inasmuch  as  it  is  not  alleged  therein 
"  that  on,  or  after,  the  12th  day  of  January,  1838,  (the 
date  of  the  passage  of  the  act,)  I  was  in  arms  with  any 
of  the  subjects  of  Her  Majesty  within  the  Province,"  or 
"  that  I  had  so  committed  any  act  of  hostility  therein,"  as 
required  by  the  provisions  of  the  the  act  under  which  the 
Charge  was  professed  to  have  been  drawn  up. 

It  is  a  rule  of  law,  "  that  all  penal  statutes  must  be 
strictly  construed.  See  Sec.  14,  Geo.  2d,  Chap.  6,  cited  in 
Blackstone' s  Commentaries,  Vol  1,  p.  88,  in  confirmation 
of  this  rule.  To  subject  me  to  the  penalties  of  this  high- 
ly penal  statute,  it  should  have  been  alleged  in  the 
Charge,  as  well  as  proven  on  the  trial,  "  that  after  the 
12th  day  of  January  last,  I  was  in  arms  with  such  traitor- 
ous subjects,"  &c.  which  was  not  done.  Time  and  place 
were  also  omitted,  which  were  material  defects  in  the 
Charge.     See  Tytler  on  Martial  Law,  p.  214 — 215. 

6th.  That  the  act  of^  the  \2th  of  January,  not  *'  affecting 
all  Her  Majesty'' s  subject s,^"*  but  '■''particular  individuals,''^ 
and  those  individuals  foreigners,  was  "  a  private  act,''^ 
and  therefore  ought  to  have  been  duly  proven  on  the  trial ; 
but  ivhich  was  not  done. 

A  public  statute  requires  no  proof.  See  Stark.  Evid. 
Vol.  1,  p.  163.  It  is  defined  to  be  one  "  which  affects  all 
the  King^s  subjects.^''  I  am  a  foreigner,  recognized  as  such 
in  the  proceedings  against  me  ;  and  as  this  act  of  the 
12th   of  January  has   been   made   to  aflfect  me,  and  not 


:  5 


LETTER    TO    LORD    DURHAM. 


45 


/  so  sitb- 

not  suf- 
:h  it  was 

and  the 
ived  the 
.  therein 
138,  (the 
vith  any 
nee,"  or 
•ein,"  as 
hich  the 

nust  be 
cited  171 

irmation 

lis  high- 
in   the 

ifter  the 
traitor- 
d  jplnce 
in  the 
5. 

iffecting 
duals, ^' 
act,'' 
e  trial  ; 


Her  Majesty's  subjects,  can  V.  be  otherwise  than  "  u 
private  act  ?"  which  is  defined  to  be  such  as  operates  up- 
ou  ^^ particular  persons,'' and  is  therefore  required  to  be 
proven.  It  has  not  even  been  declared  a  public  act,  if 
such  a  declaration  could  make  it  one.  To  have  com- 
menced legally  with  the  proofs  on  the  part  of  the  prose- 
cution, the  act  should  have  been  proven,  as  the  first  step, 
which  was  not,  however,  done  ;  and  no  evidence  was 
given  to  the  Court,  (or  exhibited  to  me,  a  foreigner,)  to 
show  that  any  such  law  had  been  enacted  by  the  Legis- 
lative authority  of  the  Province,  and  then  in  force.  See 
Sd  Campbell,  p.  166,  Cowp.  p.  174,  2d  East,  p.  221,  and 
3rf  East,  p.  381. 

In  law,  there  are  many  presumptions,  some  obviously 
very  violent.  Among  others,  the  presumption  that  every 
one,  being  a  citizen  or  subject,  knows  the  law,  however 
ignorant,  or  however  remote  his  residence  from  the  law 
making  place.  Notwithstanding,  the  individual,  (being 
a  citizen  or  subject  of  the  country,)  never  gave  a  vote  for 
a  representative  who  may  have  assisted  in  making  the 
law,  or  indeed  from  his  proverty,  or  some  other  reason, 
had  no  vote  to  give  ;  yet,  it  is  presumed  he  knows  the 
law ;  it  is  presumed  that  either  directly  or  indirectly  he 
gave  his  sanction  to  its  foundation.  He  belongs  to  the 
country,  and  must  be  governed  by  its  laws.  But,  can  this 
presumption  be  extended  to  a  citizen  of  a  foreign  coun- 
try ?  Does  he  aid,  directly  or  indirectly,  or  can  it  be  pre- 
siuned,  that  he  who  has  never  resided  in  the  country,  nor 
received  protection  from  its  laws,  and  who  owes  no 
allegiance  to  the  government,  aided  in  the  formation  of 
its  laws  ?  The  answer  is  clear,  that  he  cannot.  Therefore, 
this  act  which  affects  foreigners,  who  could  not  even  be 
presumed  to  have  had  any  part  in  framing  it,  must  be 
considered  a  ^'■private  act,"  which  required  proof. 


46 


LETTER    TO    LORD    DURHAM. 


llh.  That  the  Militia  laws  of  the  Province  of  Upper 
Canada,  passed  on  the  6th  of  March  last  by  the  Pro- 
vincial  Parliament  of  that  Province,  under  the  provi- 
sions of  which,  the  Court  Martial  by  which  I  was  tried 
was  organized,  had  an  ex  post  facto  operation,  as  it  re- 
garded me,  akd  therefore  was  not  properly  applicable. 

The  Court  Martial  by  which  I  was  tried,  as  I  have 
before  stated,  was  organized  under  the  act  of  the  6th  of 
March,  and  consisted  of  a  President  and  eight  other 
members,  only.  Whereas,  the  Militia  laws  of  the  Pro- 
vince in  existence  and  in  force  at  the  time  of  my  capture, 
as  well  as  at  the  time  of  the  passage  of  the  act  of  the  12th 
of  January,  (which,  by  the  terms  of  that  act,  became  an 
essential  part  thereof,  required  that  all  Militia  General 
Courts  Martial  convened  in  the  Province,  should  consist 
of  "  a  President,  who  should  be  of  the  rank  of  afield  officer, 
and  not  less  than  twelve  other  commissioned  officer s.^^ 

Upon  the  further  examination  of  British  authorities, 
I  find  it  is  enacted  by  33d,  Geo.  3d,  Chap,  13,  "  that  the 
Clerk  of  Parliament  shall  endorse  on  every  act  th  e  time 
it  receives  the  royal  assent,  which  endorsement  shall  be 
taken  to  be  a  part  of  that  act,  and  to  be  the  date  of  its 
commencement,  where  no  other  is  provided."  See  6th 
Bac.  371 ;  and  it  is  in  general  true,  that  no  statute  is  to 
have  a  rertrospect  beyond  the  time  of  its  commencement ; 
for  the  rule  and  law  of  Parliament  is,  "  that  a  law  ought 
to  place  its  mandate,  (ought  to  be  in  force,)  for  the  future, 
to  meet  future  contingencies  or  events,  not  those  that  are 
past."  See  2d  Mod.  R.  p.  310 — Gillmore  vs.  the  Execu- 
tors of  Shorter.  This  case  arose  upon  a  promise  made 
before  the  24th  of  June  1677.  An  action  was  brought 
against  his  executors,  and  the  question  was  whether  the 
promise,  it  not  being  in  writing,  was  within  the  29M  C. 
2d,  Chap.  3d,  whereby   it  is   enacted,  "  that   from  and 


aft( 

&c. 


the 


LETTER    TO    LORD    DURHAM. 


47 


Upper 
ie  Pro- 
I  prori- 
IS  tried 
IS  it  re- 
hie. 

I  have 
e  6th  of 
t  other 
le  Pro- 
:apture, 
;he  12th 
jame  an 
General 
[  consist 
d  officer^ 

horities, 
that  the 
e  time 
hall  be 
of  its 
See  6th 
ite  is  to 
ement ; 
r  ought 
future, 
lat  are 
Execu- 
made 
rought 


after  the  24th  of  June,  1677,  no  action  shall  be  brought, 


&c.  [in  certain  cases  therein  mentioned,]  unless  in  writing 
signed."  The  court  said  "  it  cannot  be  presumed  that  the 
statute  was  to  have  a  retrospect  so  as  to  take  away  a 
right  of  action,  which  the  plaintiff  was  entitled  to,  before 
the  time  of  its  commencement."     See  Bac.  Vol.  6,  p.  370. 

So  in  my  case,  on  the  4th  of  March  I  was  captured, 
and  on  the  13th  of  the  same  month,  put  upon  trial  on  a 
Charge  framed  under  the  act  of  the  12th  of  January  pre- 
ceding ;  and  I  viras  on  the  4th  of  March,  unquestionably 
entitled  to  a  Court  consisting  of  a  President  and  twelve 
other  members^  corresponding  to  the  twelve  Jurors  of  the 
civil  law,  instead  of  the  Court  by  which  I  was  tried,  and 
which  consisted  of  but  nine  members^  including  the  Pre- 
sidenty  organized  under  a  law  not  in  existence  when  the 
offence  was  alleged  to  have  been  committed,  but  passed 
subsequent  thereto,  to  wit,  ou  ihe  6ih  of  March,  two  days 
afttr  my  capture.  To  my  understanding,  this'was  giving 
the  law  a  retrospective  effect,  which  is  directly  contrary 
to  the  legal  rules  of  the  country. 

The  oath  administered  to  the  members  of  the  Court 
Martial  by  which  I  was  tried,  as  I  have  before  stated, 
was  framed  according  to  the  provisions  of  this  act  of  the 
6th  of  March,  by  which  the  members  were  sworn  to 
adjudge  me  **  according  to  the  Militia  latos  then  in  force 
in  the  Province ;"  when  the  fact  was,  I  was  neither  tried 
by,  nor  amenable  to  any  such  Militia  laws.  Therefore, 
the  oath  administered  to  the  members  of  the  Court  was  a 
mere  nullity. 

8th.  That  the  maps  produced  to  the  Court  by  the  Sur- 
veyor General  of  Upper  Canada,  were  not  wade  legal 
evidence  of  the  dividing  line  between  the  two  countries. 

There  was  no  proof  adduced  on  my  trial  before  said 
Court   Martial,   which  went  to  show  that  the  plans   or 


L 

P 


48 


LETTER    TO    LOUD    DURHAM. 


chnrls  produced  by  the  Surveyor  General  of  the  Province, 
purporting  to  exhibit  the  line  of  dornnrcation  between  the 
United  States  nnd  Upper  Canada,  ircrc  thcorigmalplans, 
settled  and  confirmed  by  the  commissioners  indor  the 
treaty  of  Ghent ;  or  even  copies  of  such  plans,  duly 
authenticated ;  therefore,  they  were  no  evidence,  and 
ought  not  to  have  becii  received  as  such. 

9f.h.  That  I  was  prevented  hy  the  Court  Martial  from 
having  the  benefit  of  a  cross  examination  of  the  Surveyor 
General,  to  which  I  was  entitled. 

10//f.  That  the  paper  purportijig  to  contain  the  sub- 
stance of  an  examination,  or  admissions  made  by  me,  and 
the  newspaper  containing  the  Despatches  and  Procla- 
mations, ought  not  to  hare  been  admitted  as  evidence. 
It  having  been  proven  to  the  court,  that  I  had  neither 
signed  the  paper,  said  to  contain  a  statement  of  my  exa- 
mination, or  admissions,  nor  been  requested  to  sign  it, 
and  had  refused  ;  and,  (as  I  contend,)  the  matters  contain- 
ed in  the  newspaper  produced  by  Prince  were  altogether 
irrelevant,  and  in  no  manner  connected  with  the  Charge. 
Upon  such  proceedings,  and  unsupported  by  any  other 
testimony  than  that  which  I  have  here  detailed,  and  after 
I  had  filed  a  written  defence,  the  said  Court  Martial 
adjudged  me  guilty  of  the  Charge — and  sentenced  me 
*'  /o  he  transported  as  a  felon,  to  one  of  Her  Majesty'' s 
Islands  during  my  natural  life.^''  Which  judgment  and 
sentence,  I  protest  to  your  Lordship  to  be  contrary  to  the 
statutes  and  laws  of  the  British  Empire,  unsupported  by 
the  testimony,  against  the  usages  of  civilized  nations,  and 
to  me  most  cruel  and  unjust.  (6.) 

(6.)  After  I  had  been  arraigned  before  the  Court  Martial,  one  of  the 
members  called  upon  me  and  said — "  He  conceived  it  his  duty  to  inform 
me  that  it  was  the  intention  of  the  Government  to  treat  me  in  a  similar 
manner  to  that  in  which  Gen.  Jackson  Imd  treated  Arbuthnot  and  Am- 
brister" — which  every  body  knows  would  be,  to  try  me  one  day  and 
hang  me  the  next. 


LETTER    TO    LORD    DURHAM. 


49 


rovincc, 
cen  the 
ilj)lans, 
(Icr  the 
IS,  duly 
ice,  and 

ialfrom 
•purveyor 

the  suh- 

we,  and 

Frocla- 

evidence. 

I  neither 
my  exa- 

o  sign  it, 

i  contain- 

Itogether 
Charge. 
ny  other 

find  after 
Martial 

■need  me 
lajesty^s 
lent  and 
ry  to  the 
orted  by 
ions,  and 


jne  of  the 

to  inform 

a  similar 

and  Am- 

««  day  and 


If  my  reading  bo  correct,  my  Lord,  the  laws  of  the 
British  Empire,  both  military  and  criminal  codes,  are  intend 
c'd  to  have  a  irericral,  and  not  a  special  application  ;  and  so 
long  as  such  a  character  shall  be  maintained  for  them, 
and  they  are  allowed  to  have  their  full  force,  however 
severe  may  be  any  of  their  provisions  or  penalties,  the 
laivs  will  give  no  sajiction  to  injustice  or  oppression.  It 
is  to  be  supposed  the  laws  are  made,  not  to  have  regard 
to  the  individual,  but  to  the  offence.  In  this  is  the  secu- 
rity of  tlie  person  from  the  effects  of  prejudice,  of  false- 
hood, and  the  machinations  of  the  wicked.  But,  whenever 
the  recipient  of  power,  or  public  functionary,  shall,  instead 
of  dealing  with  the  offence,  thrust  aside  the  provisions  of 
the  laws,  in  order  to  adjudge  the  individual,  there  is  then 
ail  end  to  liberty  and  public  safety.  Can  it  be  supposed, 
my  Lord,  that  when  the  laws  of  a  country  cease  to  have 
that  respect  given  them,  which  places  their  unim- 
paired operation  paramount  to  every  other  object,  and 
they  fail  to  have  force  to  protect  even  the  guilty,  frnra 
irregular  condemnation,  they  will  be  found  sufficient  to 
preserve  the  innocent  ? 

Your  Lordship  will  perceive  that  the  deficiency  of  the 
testimony  adduced  upon  my  trial  to  sustain  the  Charge 
preferred  against  me,  is  as  apparent  as  the  irregularity  of 
the  proceedings  ;  no  one  part  of  the  Charge  being  fully 
sustained,  but  the  fact  that  I  am  a  citizen  of  the  United 
States,  "  to  lohich  I  have  been  at  all  times  ready  to  plead 
guilty. ^^ 

The  fact  that  previous  to  my  capture  I  had  withdrawn 

The  manner  I  was  treated  upon  my  trial,  by  the  individuals  who 
composed  the  court,  was  outrageously  savage  and  brutal.  A  description 
of  their  infamous  proceedings,  it  is  my  intention,  hereafter  to  lay  before 
the  public  in  another  work.  As  a  tribunal,  the  court  by  which  I  was 
tried  had  neither  analogy  nor  parallel  in  the  historical  records  of  any 
nation  or  country — except  the  account  we  have  of  the  court  instituted 
by  Pizarro  for  the  trial  of  the  unfortunate  Jnca  of  Peru,  may  afford  one. 


60 


LETTER    TO    LOUD    I  URIIAM. 


w 


myself  from  the  cnusc  of  tlio  Cnnadiaii  Revolutionists,  and 
that  I  WIS,  when  captured,  in  no  manner  cotmecled  witli 
any  person  enijnged  in  any  movements, or  intended  move- 
ments, of  un  insurrectionaryor  bellijjerant  nature  in  Upper 
Canada,  was  notorious  at  the  time  of  my  trial,  both  in 
Upper  Canada  and  on  the  borders  of  the  United  States, 
and  might  have  been  established  on  my  trial  by  an  abun- 
dance of  proof  had  the  proceedings  against  mo  made 
such  proof  necessary :  and  to  establish  the  contrary, 
there  was  no  proof. 

The  averment  that  I  was  captured  within  the  lines  of 
the  Province  of  Upper  Canada  is  in  no  manner  sufficiently 
made  to  appear.  Suppose  the  statement  o(  Prince,  "  that  I 
was  taken  within  a  mile  and  a  half  of  the  Canada  shore," 
be  admitted  to  be  true,  then  there  was  no  proof  adduced 
to  the  Court  on  my  trial  which  established  the  fact,  that  if 
I  had  been  even  at  that  distance  from  the  ''anada  shore, 
it  would  have  placed  mo  within  its  bount  hich  is  de- 
fined but  by  an  imaginary  line  running  through  those 
waters.  This  point  in  dispute,  however,  is  of  no  moment 
to  my  defence.  By  the  existing  treaties  between  Great 
Britain  and  the  United  States,  I  had  a  right,  as  a  citizen 
of  the  United  States,  to  pass  unmolested,  not  only  over 
the  waters  of  Lake  Erie,  but  through  anj'^  part  of  the 
British  Provinces  in  America. 

The  act  of  the  12th  of  January  provides  only  for  the 
trial  of  such  foreigners,  &c.  as  were  in  arms  against  Her 
Majesty,  in  said  Province  on  or  after  the  12th  of  January, 
(the  date  of  the  act,)  or  who  should  commit  hostilities 
therein.  Now,  when  captured,  according  to  the  testimony, 
1  was  peaceably  pursuing  my  course  on  the  ice,  at  the 
head  of  Lake  Erie,  in  a  south-easterly  direction,  (the 
direct  route  from  Gibralter  to  Sandusky  in  Ohio,) 
unaccompanied   by  any  person  but  a  single  individual 


LETrEll    TO    LOKD    DURIIA.M. 


5\ 


wliom  I  have  before  mentinccl ;  (a  citizen  of  tljc  United 
Stutes,  lilve  myself,  nnd  whom  the  Lieutenant  Governor 
of  the  Province  of  Upper  Caniuhi  hns  lung  since  set  at 
liberty  and  permitted  to  return  to  his  home  ;)  and  there 
was  no  proof  given,  that  I  had  been  at  any  other  time, 
after  the  passage  of  the  act,  within  Her  Majesty's  do- 
minions. 

As  to  my  having  committed  liostilitios  within  the  Pro- 
uice,  subsequent  to    the  passage  of  the  act   of  the   12th 
of  January,  there  was  no  proof  offered,  nor  was  I  charged 
with  any  such  ofTencc. 

It  is  true,  my  Lord,  that  at  the  time  of  my  capture, 
myself  and  companion  had  with  us  two  inefficient  old 
swords ;  but  I  submit  to  your  Lordship  if  that  circumstance 
alone  can  be  so  tortured  and  strained  as  to  bring  me 
within  the  Charge  of  being  in  ar  as  against  He»*  Majesty, 
It  would,  1  conceive,  be  as  rational  to  talk  of  an  infant 
having  been  in  array  against  its  parent  with  a  tea  spoon. 
To  have  been  in  arms  against  Her  Majesty,  it  was  neces- 
sary I  should,  at  the  time,  have  been  in  some  manner 
connected  with  a  military  force,  sufficient  to  have  resist- 
ed, in  a  measure  at  least,  Her  Majesty's  authority.  Had 
I  been  captured  while  on  Navy  Island,  or  at  any  other 
place  in  the  Province,  at  the  head  of  and  directing,  or  in 
any  manner  aiding  an  armed  force,  with  but  a  spy  glass 
in  my  hand,  I  could  not  then  deny  I  was  in  arms  against 
Her  Majesty,  because,  forsooth,  I  carried  no  offensive 
weapons  about  my  person.  Suppose,  then,  I  had  been 
taken,  while  quietly  walking  alone  in  the  streets  of 
Toronto,  or  in  company  with  another  individual,  armed 
like  a  Turk,  with  pistols,  dirk  and  sabre,  but  not 
connected  with  any  body  of  men,  by  what  rule  of  reason- 
ing, or  application  of  common  sense,  could  it  be  maintain- 
ed under  such  circumstances,  "  that  I  was  in  arms  against 


;■(»? 


P 


53 


LETTEB    TO    LORD    r)UEIIAai. 


I:;' 


Her  Majesty,"  or  that  I  had  therel>v  offended  within  the 
intent  and  meaning  of  this  act  of  the  12th  of  Janua  v. 
The  ofience  with  which  I  was  Charged,  is,  in  its  sense, 
the  act  of  levying  war  against  Her  Majesty,  with  her  re- 
bellious subjects — and  nothing  less.  Any  hostility,  or 
aggression  committed  by  one  or  two  individuals 
would  be  an  assault  and  battery,  or  an  offence  of  some 
other  description  or  denomination  within  the  purview  of 
the  civil  laws  of  the  Province  j  the  provisions  of  which, 
against  such  offeaders,  could  readily  be  enforced  by  the 
aid  of  a  special  constable  or  two,  and  needed  not  the  assis- 
tance of  this  most  extraorf'inary  penal  act,  and  a  Court 
Martial.  It  seems,  however,  that  the  application  of  this 
act  of  the  12th  of  January  to  me,  taking  any  view  of  the 
proof,  was  altogethe:  retrospective  in  its  effect ;  and  there- 
fore, as  an  ex  post  facto  law,  comes  under  the  objections 
I  have  raised  to  the  application  o  f  the  law  of  the  6th  of 
March,  The  circumstances  of  my  having  been  upor'  the 
ice  at  the  head  of  Lake  Erie  at  the  time  o*  my  c  pture. 
even  if  I  had  been  within  the  liiixits  of  Upper  Canada, 
and  but  a  mile  and  a  half  from  its  ahores,  constituted  no 
offence  of  itself;  and  this  is  all  I  hare  been  charged 
wi*h  having  done  since  the  12tb  of  January. 

The  attempt  to  prove  that  I  was  "  on  or  abo-.t  the  26th 
day  of  December  last,  [or  at  any  time  before  or  after]  at 
Navy  Island,  in  the  District  of  Niagara,  in  the  Province 
of  Upper  Canada,  joined  to  William  Lyon  Mackenzie,"  or 
any  others,  ';^i;iects  of  her  Majesty  the  Queen,  was  an 
equal  failure,  as  I  have  before  noted  to  your  Lordship ; 
as  th«re  was  not  even  an  offer  of  any  proof  whatever,  to 
show  ihat  William  Lyon  Mackenzie,  with  whom  it  was 
alleged  I  had  been  joined,  was  a  subject  of  Her  Majesty; 
nor  was  there  one  jot  or  tittle  of  evidence  given  upon  my 
trial   to    establish  the  fact   pUeged  in  the  Charge,  that 


LETTKR    TO    LORD    DURHAM 


53 


thin  the 
lanun.T. 
,s  sense, 
1  her  r3- 
;ility,  or 
iividuals 
of  some 
rview  of 
f  which, 
d  by  the 
he  assis- 
a  Court 
n  of  this 
w  of  the 
nd  there- 
bjections 
he  6th  of 
upc  the 
cipture. 
Canada, 
tuted  no 
charged 

I  the  26th 
I  after]  at 
'rovinr.e 
Inzie,"  or 
was  an 
lordship ; 
|tever,  to 
it  was 
[ajesty ; 
ipon  my 
l^e,  that 


Mackenzie,  or  any  other  of  Her  Majesty's  subjects,  with 
whom  it  was  alleged  that  I  had  been  joined,  "  were  trai- 
*  ;rouslyin  armsag-ainst  Her  Majesty,  on  or  after  the  12th  of 
January  last,  within  the  limits  of  the  Province  of  Upper 
Canada ;"  and  without  the  establishment  of  such  facts, 
by  sufficient  proof,  the  Charge  remained  unsupported. — 
Yet,  in  defiance  of  these  palpable  defects  in  th?  proof — 
and  when  it  was  evident  I  was  justly  entitled  to  an  ac- 
quittal, the  Court  Maitial  adjudged  me  guilty  of  the 
Charge. 

It  wiP  not  be  improper  for  me  now,  I  trust,  to  exhibit 
to  your  Lordship  wherein  I  think  my  case  has  been  sub- 
jected to  an  undue  influence.     About  the  same  time  tha^ 
my  *"ial  commenced,  (which  was  iiot  concluded  for  nearly 
forty  days,)  a  British  subject  by  the  name  of  Edward  A. 
Theller,   who  is  now  imprisoned  in  this  fortress,  was  put 
upon  trial  upon  an  indictment  for  treason.      He  had  been 
engaged  in  one  of  the  revolutionary  movements  of  Upper 
Canada,  with  which  I  was  connected,  and  became  a  prison- 
er ;  whereupon,  being  a  natural  bor:i  subject  of  Her  Majes- 
ty, j,n  ^"ndictment  for  treason  was  preferred  against  him. 
IFponhis  trial,  Theller  alleged  that  he  had  been  created  a 
citizen  of  the  United  States ;  and  set  up  the  plea,  that 
therefore,  he  could  not  be  legally  charged  for  treason,  as 
a  subject   of  Great  Britain.     The  plea,  however,  availed 
him  nothing  on  his  trial,  and    he  was  condemned   and 
sentenced  lo  be  executed  ;  and  when   he  again  urged  it 
to  the  Lieutenant  Governor,  as  a  grouni  for   a  respite 
until  the  opinion  of  Her  Majesty's  Government  in  Eng- 
land could  be  t  -ken  in  the  case,  it  still  seemed  to  avail 
him  nothing,  until  it  was  understood   that   the   Govern- 
ment of  Upper  Canada  had  come  to  the  conclusion  to  deal 
with  its  political  ofTenders  by  classification;  then,  this  man, 
together  with  his  friends,  (among  whom  he  might  num- 

5* 


m 


54 


LETTER    TO    LORD    DURHAM. 


!l  .1, 


bei  the  most  of  the  people  of  his  particular  country,  ii> 
Toronto,)  laid  hold  of  me  as  an  available  sacrifice,  to 
gain  him  a  respite,  which  it  was  believed  would  be  the 
means,  at  least,  of  saving  his  life.  To  this  course,  Thel- 
ler  the  more  readily  resorted  as  he  was  aware  that  I  held 
his  conduct  at  the  time  of  his  capture,  as  any  thing  but 
creditable  to  himself.  At  this  time,  mv  case  had  been 
determined,  and  it  was  then  urged  upon  the  Lieutenant 
Governor,  Sir  George  Arthur,  that  it  would  be  very 
illy  received  by  a  portion  of  the  inhabitants  of  the  Pro- 
vince, (his  particular  countrymen,)  if  Theller  should  be  ex- 
ecuted, since  I,  one  whom  they  alleged  was  a  much  great 
er  offender,  had  not  been  subjected  to  capital  punish- 
ment ;  and  to  give  weight  to  their  arguments,  all  my  acts 
were  greatly  magnified,  and  both  my  character  and  con- 
duct most  grossly  misrepresented  ;  whereby  I  ma}''  well 
suppose  the  mind  of  Sir  George  Arthur,  who  know? 
nothing  of  me,  but  by  the  partial  representation  of  Thel- 
ler's  friends,  and  others,  who  are  far  from  being  friends 
to  me,  has  been  much  poisoned  and  embittered  towards 
me  ;  and  it  has  been  suggested  to  me,  (with  how  much 
justice  I  cannot  say,)  that  without  this  influence,  I  had 
long  since,  and  while  yet  in  Upper  Canada,  been  releas- 
ed from  imprisonment  by  the  Lieutenant  Governor  of  that 
Province,  instead  of  being  sent  here,  to  be  detained. 

You  may  ask,  my  Lord,  what  proof  have  I  that  this 
course,  of  which  I  complain,  has  been  pursued  towards 
me  ?  I  answer,  as  one  evidence,  I  have  before  me  a 
printed  document  emenating  from  one  of  the  Common 
Council  Men  of  the  city  of  Toronto,  from  which  I  tran- 
scribe the  following  paragraphs  : 

"On  its  being  made  public  that  the  life  of  Sutherland, 
(who  was  tried  by  a  Court  Martial  as  an  American 
citizen,)    had  been  spared,   it  occured    to   some  of    the 


gen 


The: 
'that  th 


LETTER    TO    LORD    DURHAM. 


65 


l^entlemen,  who  after>v'ards  waited  upon  liis  Excellency, 
tiiat  it  mig-ht  possibly  produce  an  evil  effect  on  the 
minds  of  the  Irish  inhabitants  of  the  Province,  were 
the  cohimander-in-chicf  of  the  pirates  to  escape  with 
secondary  punishment  because  he  was  an  American 
citizen,  while  his  subordinate,  was  doomed  to  suffer 
the  utmost  penalty  of  the  law,  for  the  same  crime, 
with  the  sole  difference  that  the  latter  convict  was  a 
natural  born  subject  of  Great  Britain,  and  by  birth  an 
Irishman. 

"  We  accordingly  waited  upon  his  Excellency  to  the 
number  of  eight,  who  were  as  follows:  -Aldermen — 
Dixon,  Armstrong-,  Stotesbury  and  Taylor ;  Common 
Council  Men — Craig,  Trotter,  Brown  and  Dr.  King. 

*'  His  Excellency  received  us  with  the  greatest  polite- 
ness, and  condescended  not  only  *o  listen  to  our  argu- 
ments, but  also  to  enter  into  conversation  upon  it  with 
most  of  us  at  considerable  length ;  and  I  am  sure 
that  those  who  were  with  me  will  agree  that  far  from 
giving  us  any  hope  that  the  consideratii  i  we  urged 
had  prevailed,  we  were  given  to  understand  that  it 
was  not  one  upon  which  his  Excell       v  could  act. 

"  Afterwards  his  Excellency  did  me  the  honor  of  send- 
for  me,  and  of  informing  me  that  the  prisoner  iiad  been 
respited  until  Her  Majesty's  decision  could  be  had  upon 
the  case  ;  and  his  Excellency  further  informed  me  that 
the  question  which  was  to  be  submitted  to  Her  Majesty' 
Government,  was  one  of  a  legal  character ;  and  that  he 
thought  it  necessary  to  state  this  to  me,  lest  a  false  im- 
pression might  be  on  my  mind,  or  go  abroad,  that  the 
prisoner  was  respited  on  any  argument  advanced  by  us. 

(Signed,)  ♦'  JOHN  KING." 

These  paragraphs,    afford   most   indubitable    evidence 
'that  there  was  an  attempt  made  to  influence  the  Lieu- 


56 


LETTER    TO    LORD    DURHAM. 


tenant  Governor  in  behalf  of  this  Thaller,  at  my  expense; 
and  that  too,  by  individuals  of  no  moderate  standing  and 
influence  ;  and  although  the  statement  of  Dr.  King,  goes  to 
deny  the  success  of  the  attempt,  as  toTheller's  benefit,  it 
will  be  perceived  he  does  not  even  profess  to  negative  the 
presumption  of  its  efllect  upon  my  case,  to  which  the  real 
ground  assumed  by  the  Lieutenant  Governor  in  granting 
the  respite  is  immaterial.  It  was  natural  that  Sir  George 
Arthur  should  have  been  predisposed  to  act  against  me ; 
and  as,  under  such  circumstances,  men  are  often  moved 
by  influences  of  which  they  are  themselves  insensible, 
it  will  not,  I  hope,  be  regarded  as  disrespectful  to  Sir 
George  Arthur  to  suggest,  that  although  the  arguments 
of  Dr.  King,  and  the  other  friends  of  Theller,  had  no 
Aveight  to  influence  His  Excellency  in  Theller's  behalf, 
they  may,  nevertheless,  have  had  great  weight,  to  in- 
fiuence  his  determination  in  regard  to  me.  For,  you  will 
perceive,  my  Lord,  they  solicited  no  favor  for  Theller,  on 
the  ground  of  the  merits  of  his  case,  but  for  the  reason, 
as  they  assumed,  that  I  '.v'"'^>  a  worse  enemy  than  he  ;  a 
ground  as  extraordinary  to  be  taken,  as  the  facts  alleged 
were  unreal,  and  their  course  of  argument  negative  to  the 
opinions  of  the  whole  civilized  world. 

That  we  were  both  chargeable  with  the  same  offence 
against  Her  Majesty's  Government,  "  with  the  sole  dif- 
ference that  Theller  was  a  natural  born  subject  of  Great 
Britain,"  is  most  true.  But  national  policy,  as  well 
as  individual  justice,  makes  that  difference,  as  I  humbly 
conceive,  a  ver)  great  and  important  one.  To  sustain 
the  government  from  the  aggressions  of  its  enemies, 
Great  Britain  had  no  claims  upon  nie.  She  could  de- 
iiiand  from  me  no  more  than  that  I  should  keep  off*  my 
hands  ;  and  in  assaulting  the  Government,  I  made  myself 
no  more  than  an  open  and  public  enemy,  to  be  disposed 


LETTER    TO    LORD    DURHAM. 


57 


of  as  I  have  before  premised.  Not  so  in  his  case.  By 
birth  he  owed  allegiance  to  the  Government  of  Great 
Britain,  which  required  him  not  only  to  stay  his  own  hand, 
but  to  bear  arms  to  sustain  it  from  the  ruthless  attacks 
of  others.  In  the  dominions  ofGreat  Britain  he  had  been 
educated,  and  from  the  government  he  had  received  emol- 
ument, (as  I  am  imformed,)  which  claims  his  gratitude  ; 
and  for  his  offence,  the  laws  to  which  he  owed  obedience 
prescribed  the  penalty ;  and  if  there  may  be  any  credit 
given  to  his  own  words,  the  only  property  he  has  any 
claim  to  on  the  face  of  this  earth,  is  an  interest,  by  his 
wife,  in  an  estate  in  the  District  of  Montreal,  in  this  Pro- 
vince ;  and  it  was,  as  he  has  informed  me,  with  a  view- 
to  lletter  his  claim  to  that  estate,  that  he  took  up  arms  to 
sustain  the  revolution.  To  me,  the  motive  which  af- 
fords the  least  apology,  is  that  which  has  moved  the  British 
people,  in  more  instances  than  one,  to  acts  similar  to  mine, 
in  other  countries  ;  and  that  which  moves  the  officer 
of  all  civilized  nations  to  enter  foreign  service.  Then, 
again,  I  have  this  difference  in  my  favour  ;  I  was  cap- 
tured on  the  waters  of  Lake  Erie,  within  the  jurisdiction 
of  the  United  States,  as  I  believe  I  can  clearly  establish, 
and  not  until  after  I  had  abandoned  the  cause  of  the  re- 
volutionists of  my  own  accord ;  whereas  Theller  was 
captured  decidedly  within  the  Province  of  Upper  Canada, 
and  in  the  very  act  of  his  aggression. 

As  to  the  alleged  fact  that  Theller  had  been  made  a 
citizen  of  the  United  States,  in  pursuance  of  the  laws  of 
the  Republic  for  the  naturalization  of  foreigners,  I  have 
no  knowledge.  I  would  beg  to  suggest,  however,  that  if 
he  had  been  made  such  citizen,  when  he  took  up  arms 
violently  to  assault  the  Government  of  Great  Britain,  with 
w'^  ch  the  United  Slates  were  on  terms  of  peace  and 
amity,  he   lost  the  character  of  an  American   citizen,  as 


\  ■  ■ 


w 


58 


LETTER    TO    LORD    DURHAM. 


he  thereby  alienated  himself  from  the  Government  of  the 
United  States  ;  and  it  is  not  alone  to  be  perceived  by 
a  lav^ryer,  that  the  moment  he  stopped  his  foot  within 
Her  Majesty's  dominions,  in  the  attitude  of  hostility,  he 
stood  there  in  the  naked  character  of  a  subject,  and  as 
fully  amenable  to  all  the  laws  of  the  realm,  and  the  pains 
and  penalties  of  treason,  as  if  he  had  never  been  beyond 
its  limits  ;  and  this,  my  Lord,  is  all  the  question  of  a 
legal  character  raised  by  Theller  in  his  defence,  and 
which  Sir  George  Arthur  had  to  submit  to  Her  Majesty's 
Government  for  a  decision. 

Ill  another  view,  the  arguments  adduced  by  Dr.  King 
and  his  associates  in  behalf  of  Theller,  to  the  detriment 
of  my  case,  were  extremely  unjust  in  their  premises. 
The  case  fairly  stated  is  this:  A  portion  of  Her  Majes- 
ty's subjects,  lately  inhabiting  the  Provinces  of  the  Cana- 
das,  (of  which  this  same  man  is  one,)  came  to  our  coun- 
try and  complained  to  us  of  political  grievances,  and  ex- 
cited our  sympathy  by  the  relation  of  a  multitude  of 
wrongs,  and  asked  our  aid  in  their  quarrel.  As  would  an 
advocate  listen  to  the  oppressed,  so  did  we  hearken  to  their 
stories,  (and  true  or  false,  it  is  immaterial  to  the  case,)  we 
believed  them,  and  consented  to  espouse  their  cause — and 
with  them  were  defeated;  and  so  acting  in  behalf  of  those 
who  had  made  us  their  agents,  not  with  the  offer  of  gain, 
but  by  appealing  to  our  sympathies,  according  to  the  rea- 
soning of  those  gentlemen,  we  are  to  be  adjudged  worse 
offenders  than  the  principals  in  whose  employ  we  were, 
and  at  whose  instigation  we  had  moved  in  the  matter; 
and  this  was  to  be  done,  in  my  case,  without  even  the  ap- 
plication of  the  judicial  rule  of  looking  into  the  facts 
as  they  appeared  upon  legal  investigation.  What  i  am 
now  stating,  my  Lord,  is  not  merely  argumentative,  but 
facts — facts  notorious  and  not  subject  to  be  controverted. 


hi  ih 


LETTER   TO    LORD    DURHAM. 


59 


III  ihc  afl'airs  of  these  Provinces  I  have  had  no  direct  per- 
sonal interest,  and  only  acted  as  a  volunteer  officer. 
Theller  never  professed  to  bo  a  voliniteer;  he  declared 
himself  to  be  acting  in  his  own  behalf,  and  for  his  own 
country,  and  on  his  very  trial  at  Toronto,  wore  the  uni- 
form and  badges  which  were  assumed  to  distinguish  those 
who  professed  to  belong  to  the  Provinces,  from  the  Ameri- 
can volunteers. (7.) 


ti 


(7.)  To  cuntinuc  tbo  iibsurdity,  this  man,  Thcller,  nfter  being  taken 
out  of  tbe  casemates  of  tlie  Citadel  of  (Quebec  by  his  Canadian  friends,  peti- 
tioned the  Congress  of  tbo  Uniled  tStates  for  tbo  enactment  of  u  national 
law  "  to  prohibit  the  British  (Jovcrnment  from  trying  any  of  its  subjects 
lor  (reason,  who  had  emigrated  to  this  country,  and  under  our  laws  been 
naturuli/ed,  and  who  were  then  taken  inarms  against tiiat  government;'' 
and  his  petition  being  put  into  the  hands  of  Mr.  Senator  Clay,  he  fo  car- 
ry out  tbe  joke,  presented  it  to  the  Senate.  What  would  such  a  law 
avail,  and  who  would  be  bound  by  it  if  enacted  '!  Not  Great  Britain, 
certainly. 

Let  us  suppose  it  should  be  settled  and  established  by  negotiation  be- 
tween the  two  governments,  that  the  s?ibjects  of  Great  Britain  emigra- 
ting to  the  United  States,  and  becoming  naturalized  as  citizens  by  our 
laws,  should  be  regarded  as  citizens  by  the  British  Governmen.;  what 
would  such  a  contract  amount  to  in  case  of  u  war  between  the  two  coun- 
irics.  when  all  former  contracts  would  be  disregarded  ?  and  I  trust  that  it 
would  never  be  asked  by  the  government  of  the  United  States,  nor  con- 
ceded by  the  British,  that  adopted  citizens,  who  make  war  on  their  own 
licconnt,  while  the  governments  are  on  terms  of  peace  and  amity,  should 
have  a  protection  ttiat  is  not  given  to  natural  born  citizens. 

I  propose  to  examine  this  question  a  little  further  for  the  satisfac- 
tion of  some  of  our  naturlizied  citizens.  It  is  osked  by  them,  that  the 
Government  of  the  United  Stotes  should  obtain  from  the  Government  of 
(treat  Britain,  by  negotiation,  a  stipulation  on  the  part  of  that  govern- 
ment to  relinquish  all  claim  for  allegiance  from  such  of  their  subjects  as 
shall  emigrate  to  this  country  and  become  citizens  of  the  United  States 
by  our  naturalization  laws.  If  this  measure  should  be  proposed  by  our 
government  and  acceded  to  by  that  of  the  British,  it  could  only  be  car- 
ried out  by  the  enactments  of  the  British  legislature,  declaring  "  that  all 
British  subjects  who  should  absent  themselves,  (for  a  term  of  years  to 
be  agreed  upon  and  specified,)  from  their  dominions,  should  be  deemed 
aliens,  ns  well  as  the  children  bom  of  their  bodies  in  foreign  countries;" 
and  tbe  British  would  be  sure  to  require  a  corresponding  enactment  from 
our  national  legislature.  By  the  existing  laws  of  Great  Britain,  (and  the 
same  principle  is  embraced  in  our  own  laws.)  any  individual  born  in 
their  dominions  is  a  subject,  and  nothing  that  can  be  done,  will  deprive 
liim  of  that  character;  and  all  children  born  of  British  subjects  in  foreign 
countries  are  regarded  as  subjects  also.  Hence,  it  will  be  perceived, 
that  by  the  existing  laws,  a  British  subject  may  emigrate  to  this  country, 
become  naturalized  as  a  citizen,  and  abide  here  for  any  length  of  time: 
and  then,  should  it  become  his  interest  or  his  desire  to  return  to  the  land 
of  his  birth,  he  may  do  so,  and  there  possess  all  the  privileges  of  a  sub- 


60 


LETT£R    TO    LORD   DUBHAM. 


This,  my  Lord,  is  not  the  only  evidence  of  my  case 
having  been  subject  to  an  irregular  and  improper  in- 
fluence. At  the  time  my  trial  commenced  at  Toronto, 
the  administration  of  the  Government  of  the  Province  of 
Upper  Canada  was  in  the  hands  of  Sir  F.  B.  Head,  and 
no  trials  for  treason  had  then  taken  place.  On  the  23d  of 
March,  during  the  progress  of  my  trial.  Sir  George  Ar- 
thur arrived  at  Toronto  and  assumed  the  reins  of  the  go- 
vernment. At  the  moment  of  his  doing  so,  I  learn  from 
a  despatch  of  His  Excellency  to  Lord  Glenelg,  that  he 
was  informed  by  his  Executive  Council,  it  was  almost 
universally  expected  "  that  the  severest  penalty  of  the 
law  would  be  visited  upon  all  the  leaders,  and  most 
guilty  traitors" — but  he  continues  to  say — "  the  mem- 
bers of  the  Council,  themselves,  saw  the  difficulty  of  pro- 
ceeding to  extremes,  where  so  large  a  number  of  per- 
sons were  concerned ;"  and  that  then  *'  much  considera- 
tion was  given  to  forming  some  plan  of  classing  the  offen- 
ders." (I  quote  from  the  document  which  is  now  before 
me.)  Before  my  trial  had  been  concluded,  a  number  of 
convictions  for  treason,  (in  addition  to  that  of  Theller's,) 
had  taken  place,  amor.g  which  were  those  of  Lount  and 
Matthews,  who  were  sentenced  to  be  executed  on  the  13th 
of  April,  then  next  following.  In  behalf  of  these  men, 
(Lount  and  Matthews,)  great  exertions  were  made  to  save 
them  from  the  utmost  penalty  of  the  law ;  and  in  three  or 
four  days,  (says  the  despatch,)  petitions  signed  by  no  less 

ject,  as  if  he  had  never  been  absent  from  his  country;  and  the  children 
of  British  subjects  born  in  this  country,  have  the  privilege  of  choosing 
between  the  United  States  and  the  British  dominions  for  a  residence; 
and  they  may  regard  themselves  as  citizens  or  subjects,  as  it  shall  best 
suit  their  interest  or  wishes.  To  attain  the  stipulation  proposed,  all  these 
immunities  must  necessarily  be  surrendered;  and  all  British  subjects  who 
take  up  their  residence  abroad  must  as  necessarily  be  made  subject  to  the 
regulation.  But  it  is  not  to  be  supposed  that  all  of  the  British  subjects 
who  have  taken  up  a  residence  in  the  United  States,  or  even  a  majority 
of  them,  are  wishire  to  become  aliens  to  the  land  ef  their  birth,  while 
they  would  gain  nothing  by  it,  . 


LETTER    TO    LORD    DURHAM. 


61 


ny   case 
roper  in- 
Toronto, 
)vince  of 
ead,  and 
le  23d  of 
orge  Ar- 
f  the  go- 
am  from 
,  that  he 
IS  almost 
ty  of  the 
ind  most 
tie  mem- 
ty  of  pro- 
r  of  per- 
onsidera- 
the  ofTen- 
)w  before 
umber  of 
heller's,) 
nint  and 
the  13th 
se   men, 
to  save 
three  or 
no  less 

children 
f  choosing 
residence; 
shall  best 
i,  all  these 
^)jects  who 
^ject  to  the 
subjects 
majority 
rth,  while 


ihan  eight  thousand  persons  had  been  presented  in  their 
favor  ;  which,  however,  availed  them  nothing.     But,  when 
it  became   known  that   the    Lieutenant  Governor  would 
not  interfere  with  the  course  of  the  law  in  the  case  of 
Lount  and  Matthews,  it  was  at  the  same  time  understood 
by  the  public,  that  while  the  Govern7ne?'t  had  determined 
that  some  of  those  luhom  they  considered  the   most  guilty 
offenders  should  suffer  deaths  it  tvas  their  intention  to  re- 
duce that  number  to  a  very  few.     Then,  as  it   was  to  be 
expected,  commenced  the  struggle  of  the  friends  of  each 
who  was  considered  in  danger,  to  make  some  others  ap- 
pear those   greater   offenders^  who  should  be  included  in 
thefeio  destined  to  suffer   the  most  severe  punishment. 
While  this  was  going  on,  my  case  was  brought  to  a  de- 
termination by  the  Court  Martial — and  the  Government — 
and  the  result  made  public.    I  was  then,  at  once,  seized  up 
on  by  the  friends  of  all  those  who  were  dangerously  impli 
cated,  as  the  means  to   stop  the  avenues  to  the  scaffold  ; 
and  although  the  true  circumstances  of  my  case  were  but 
very  little  known,  and  less  understood,  yet  almost  every 
one  of  the  very  persons  at  whose  hands  I  thought  I  had  a 
right  to  demand  favor,  took  occasion  to  proclaim  *'  that 
the  Government  could  not  consistently  suffer  any  more  ex- 
ecutions^ since  J,  whom  they  declared  to  have  been  one  of 
the  worst  of  criminals^  had  been  suffered  to  go  off  with 
secondary  punishment ;  and  it  is  a  known  fact  that  there 
were  no  more   executions  for  offences   then  committed. 
Thus  it  was,  while  one  party,  for  the  charitable  purpose 
of  serving  their  friends,  took  care  so  to  represent  me  to  the 
Lt.  Governor,  that  I  should  appear  the  chiefest  of  offenders, 
and  as  deserving  the  worst  of  punishment,  the  ultra  loyal- 
ists, (who  seemed  to  have  looked  upon  me,  as  does  a  child 
upon  the  fingers  of  a  watch,  who,  when  beholding  them  in 
their  office  of  pointing  the  hours,  never  suspects  that  their 

6 


w 


62 


LETTER    TO    LOUD    DURHAM. 


P 


I- 


movements  are  not  of  themselves,  but  by  the  influence  of 
a  macliinciy,  qs  the  mechanic  will  tell,  consisting  of  992 
individuiil  parts,)  did  their  best  endeavors  to  have  such 
punishment  fixed  upon  me. 

It  needs  110  further  explanation  to   show   how  seriously 
all  the^e   matters   have,  heretofore,  and  must  still,  affect 
my  interest.     The  party  whose  cause  I  had  once  espoused, 
was  then  discomfitted  and  broken  up  ;  and  the  individuals 
who  composed  it,  like  the  pieces  of  a  shattered  bark  upon 
the  waters,  were  made  to  strike  and  mar  each  other,  as 
each  struggled  individually  to  save  himself;  and  none 
thought  it  unjust  to  exhibit  me  as  the  instrument  that  had 
done  the    wrong,  though  they  hid  the  hand  that  used  it. 
While  I  have  thus  been  borne  down  by  a  current  of  evil 
influences,  I  have  seen  others  released  and  returned  to  the 
bosoms    of  their   families    and    friends,  whose  influence 
with  the  Revolutionists  of  these  Provinces,  in  comparison 
to  mine,  has  been  as  a  mill-stone  to  a  feather ;  and  whose 
conduct  in  the    matter   of  the   late  insurrectionary  move- 
ments would  be  as  scarlet,  while  mine  should  be  as  wool. 
If  it  be  remembered,  my  Lord,  that  I  come  from  a  coun- 
try where  it  is  held  a  political  text,  "  that  to  secure  life, 
liberty  and  the  pursuit  of  happiness,  governments  are  in- 
stituted among  men,  deriving  all  their  just  powers  from 
the  consent  of  the  governed  ;  and  that  when  any  form  of 
government  becomes  destructive  of  those  ends,  it  is  the 
right  of  the  people  to  alter  or  abolish  it,  and  to  establish 
a  new  form  of  government,  laying  its  foundations  on  such 
principles,  and  organizing  its  powers  in  such  forms,  as  to 
them  shall  seem  most  likely  to  effect  their  safet}'  and  hap- 
piness"— that  I  am  a  citizen  of  a  republic  whos<3  people 
begin  their  history  as  a  nation  with  that  of  a  fierce  and 
bloody  conflict   with   the   people  of  Great  Britain — of  a 
V. ountry   whose   heroes  "  of  story  and  of  song"  are  only 


m 


LETTER    TO    LORD    DURHAM. 


63 


those  who  have  "  measured  stcul,"  and  "  cluslied  ilieir 
arms,"  with  Britons,  and  against  colonial  rule — and  in 
whose  struggle  for  independence  against  the  domination 
of  the  British  Govcrnmeni,  the  aid  o{  foreign  volunteers, 
greatly,  if  not  mainly,  contrihuted  to  its  success,  when  an 
insurrection  was  proclaimed  in  these  Provinces,  and  num- 
bers of  the  agents  of  the  revolt  had  come  among  us  and 
related  their  grievances,  which  were  similar  in  nature 
and  character,  as  we  believed,  to  those  which  our  fore- 
fathers had  been  subjected  to  by  the  British  Government, 
while  it  had  the  power  of  coercion,  and  which  had  in- 
duced them,  in  1775,  to  make  their  appeal  to  arms,  your 
Lordship  could  hardly  have  been  surprised  to  hear 
that  I  with  my  countrymen,  had  lent  a  willing  ear  to  the 
detail  of  wrongs  given  to  us  by  those  agents  ;  and  that  our 
minds  should  have  then  naturally  reverted  back  to  the 
lessons  of  our  school  books,  in  which,  during  our  juvenile 
days,  we  had  learned  the  stories  of  such  volunteers  in  the 
early  and  hazardous  cause  of  our  own  country,  as  Lafay- 
ette, Steuben,  De  Kalb,  Kosciusko  and  Pulaski ;  and  when 
the  standard  of  revolt  had  been  raised,  and  the  banner  of 
liberty  once  unfurled  in  these  Provinces,  your  Lordship 
could  not  have  been  disappointed  to  find  that  I,  as  well  as 
many  others  of  my  countrymen,  were  fo"'nd  as  volunteers 
around  it.  For  it  had  been  made  to  appear  to  us,  that 
there  luas  to  he  a  struggle  for  liberty,  in  which  a  large 
majority  of  the  people  of  the  Canadas  were  willing  and 
ready  to  embark  ;  and  we  felt  that  we  were  called  upon 
to  discharge  ourselvo:5  from  a  debt  of  gratitude  which  we 
luid  been  taught  we  owed.  Such,  with  the  desire  to  ob- 
tain the  small  share  of  applause  which  might  chance  to 
accrue  to  one  of  ihe  humble  agents  in  the  establishment  of 
another  Independent  Republic  on  the  continent  of  America, 
were  the  moving  inducements  for  my  embarking,  as  I  did. 


V 


f    't 


64 


LETTEK    TO    LORD    DURHAM. 


in  the  nndortalani,'',  for  whicli  I  nin  now  being  mnde  to 
sufTer. 

It  hns  never  been  denied  by  me,  that  I  was  for  «ome 
lime  in  the  months  of  December  and  Janiiary  hist  con- 
nected, as  a  military  ofTicer,  in  the  manner  I  have  before 
stated,  with  forces  which  have  been  in  arms  in  Up- 
per Canada,  for  the  purpose  of  subverting  Her  Majes- 
ty's authority  in  that  Province,  and  to  establish  in  its 
stead  an  Independent  Republican  form  of  government. 
Neither  will  I  now  pretend  that  I  was  at  all  ignorant  ol 
the  danger  in  which  I  was  placed  by  connecting  myself 
with  so  hazardous,  and  as  to  its  result,  doubtful  underta- 
king. I  was  at  the  lime,  my  Lord,  fully  aware  that  while 
on  the  one  hand,  success  would  add  to  my  name  a  '  title 
of  glory,"  and  accord  me  such  praise  as  *'  wits  could 
imagine  and  poets  sing,"  on  the  other  hand,  aside  from  the 
common  dangers  of  the  field,  a  defeat  or  failure  might 
leave  me  but  the  tenant  of  a  dungeon — laith  a  palle*  of 
straw. 

In  my  conduct,  I  have  been  charged  with  bavins:  acted 
*'  contrary  to  the  express  injunctions  of  the  gvvernmtn'  of 
my  oion  cmintry^'*  and  of  having  contravened  its  laws. 
Yet,  it  is,  nevertheless,  notorious  that  I  did  not  act  against 
the  will  of  the  people.  Until  several  insurrectionary 
movements  had  taken  place  in  these  Provinces,  and  until 
I  had  been  present  at  respectable  and  numerously  attend- 
ed public  meetings  in  my  own  country,  at  which  the  poli- 
tical condition  of  the  Canadas  vvas  under  consideration, 
and  I  had  heard  the  cause  of  the  Revolutionists  of  these 
Provinces  advocated  by  men  the  most  talented  and  es- 
teemed of  my  country,  I  had  no  connection  with  any  of 
the  people  of  the  Canadas;  and  until  then,  I  had  in  no 
manner  interfered  with  the  political  affairs  of  the  Pro- 
vinces :  and  when,  at  a  public  meeting  held  in  the  city 


LETTER    TO    LORD    DURHAM. 


wliere  I  resided,  (at  which  meeting  it  was  estimntcd  by 
the  public  prints,  '*  that  Jiboiit  every  voter  was  present" 
of  a  population  of  20,000,)  I  mentioned  my  willingness  to 
be  employed  as  a  military  otTirer  in  the  attempt  that  was 
then  being  made  to  establish  an  Independent  Republican 
form  of  Government  ir:  Upper  Canada  ;  the  announcement 
was  received  with  cheers  !  and  when,  (after  I  had  left 
Navy  Island,)  I  was  passiig  from  one  extreme  to  the  oth- 
er of  the  American  frontiers  for  the  accomplishment  of 
the  objects  of  the  revolutionary  movements  in  which  I 
had  embarked,  at  every  stopping  place  on  my  route,  there 
was  given  me  the  most  flattering  reception.  Indeed,  un- 
til I  withdrew  myself  from  further  acting  with  the  Pat- 
riots, or  Revolutionists  of  Upper  Canada,  (which  was  on 
or  about  the  5th  of  Februrary,  1838,)  wherever  I  appear- 
ed I  was  met  with  applause  and  demonstrations  of  ap- 
proof. 

Had  I  not  then,  my  Lord,  every  reason  to  believe  I  was 
pursuing  the  wishes  of  my  countrymen  ?  and  your  Lord- 
ship could  not  expect  it  to  be  otherwise  than  that  the  peo- 
ple of  the  United  States  should  be  disposed  to  aid  any  at- 
tempt, which  seemed  to  promise  success,  made  to  estab- 
lish similar  institutions  to  their  own  in  these  Provinces, 
although  the  Government,  technically  considered,  might 
be  opposed.  Their  every  day  intercourse  with  the  peo- 
ple of  the  Canadas,  and  the  very  fact  of  their  being  sat- 
isfied with  their  own  form  of  government  would  lead  them 
to  the  act. 

I  would  suggest  to  your  Lordship  that  I  find  in  the  his- 
torical records  of  Great  Britain,  innumerable  instances  in 
the  conduct  of  the  subjects  of  that  country  which  go  far 
to  excuse,  if  not  to  justify  my  own. 

If  I  have  read  correctly,  a  large  body  of  British  troops, 
raised  in  Scotland,  with  Gustavus  Adolphus,  traversed  a 

6* 


66 


LETTER    TO    LORD    DTTRHAM. 


great  par*  of  Europe,  and  mainly  assisted  in  bursting  the 
galling  bands  of  Germany;  and  those  troops  were  led  by 
the  Marquis  of  Hamilton,  a  man  of  the  first  distinction 
and  consequence  in  his  country,  the  personal  friend  of 
the  king,  from  whom,  however,  he  had  no  license. 

It  is  also  notorious,  and  a  well  authenticated  matter  of 
historical  record,  that  during  the  conflict  of  arms  which 
took  pla:t  at  the  several  revolts  of  the  late  Spanish  Pro- 
vinces in  America,  many  British  gentlemen  of  known 
honor  and  probity  uf  character,  entered  the  contest  in  be- 
half of  the  Revolutionists  of  those  Provinces  and  served 
against  Spain,  while  the  government  of  that  country  was 
on  terms  of  peace  and  amity  with  Great  Britain  ;  and 
largely  contributed  in  achieving  the  independence  of 
those  countries.  Among  the  names  of  the  most  promi- 
nent of  such  British  volunteers  stand  those  of  Lord  Coch- 
ran and  Sir  Gregor  McGregor  ;  and  if  my  information  be 
correct,  this  same  Lord  Cochran,  at  the  time  he  was  car- 
rying his  arms  against  the  Spanish  Government  under  the 
flag  of  its  rebellious  subjects,  was  a  Peer  of  the  realm, 
and  held  a  seat  in  the  highest  legislative  body  of  the 
British  Empire. 

Also,  in  1825,  (if  I  am  correct  in  the  date,)  another 
Peer  of  Great  Britain,  Lord  Byron,  joined  himself  with 
the  people  who  were  theri  in  a  state  of  revolt  in  one  of 
the  Provmces  of  the  Turkish  Empire,  while  the  Porte 
was  on  terms  of  peace  and  amity  with  the  Government 
of  Great  Britain  ;  and  duri.ig  his  career  in  the  Morea, 
which  was  brought  to  a  close  in  a  few  short  months  by 
his  Lordship's  decease,  he  largely  contributed  to  sustain 
the  insurgents  :  and,  also,  at  or  about  the  same  time 
Lord  Byron  entered  Greece,  another  gentleman  from 
England,  with  two  hundred  British  officers,  entered  that 
country  and  espoused  the  cause  of  the  insurgents  of  the 


LETTER    TO    LORD    DURHAM. 


67 


ng  the 
led  by 
inction 
iend  of 

alter  of 
which 
sh  Pro- 
known 
t  in  be- 
served 
try  was 
n ;  and 
nee    of 
promi- 
i  Coch- 
ition  be 
vas  car- 
der the 
realm, 
of  the 

nother 
f  with 
one  of 
Porte 
•nment 

orea, 
ths  by 
ustain 

time 

from 
that 

f  the 


Morea,  without  any  permission,  as  it  is  known,  from  tlic 
Monarch  of  their  country,  and  while  there  was  yet  no 
rupture  between  their's  and  the  government  of  the  Sul- 
tan: Although  a  subsequent  act  of  the  British  Govern- 
ment would  seem  a  tacit  adoption  of  those  proceedings 
of  British  subjects;  as  shortly  after  the  occurrence  of 
the  transactions  I  have  mentioned,  Sir  Edward  Codring- 
ton,  in  command  of  a  British  naval  force,  assisted  by  a 
French,  and  a  Russian  squadron,  without  a  declaration  of 
war,  and  Avithout  any  apparent  justification,  (except  as  a 
matter  of  assistance  to  the  Greek  Revolutionists,)  attack- 
ed the  Turkish  squadron  in  the  Bay  of  Navarino,  and  to- 
tally destroyed  it ;  and  this  act  was  decidedly  approved 
of  by  the  British  Government,  and  as  a  mark  of  honora- 
ble distinction  for  his  conduct  on  that  occasion,  the  admi- 
ral had  conferred  on  him  the  order  of  knighthood  by  his 
sovereign. 

Then,  by  noticing  the  occurrences  of  a  more  recent 
date,  it  will  be  found  that  but  a  few  years  since,  an  ex- 
Emperor  of  Brazil,  Don  Pedro,  engaged  in  England  a 
number  of  British  officers  and  soldiers,  Avith  whom  he 
'ailed  from  London  for  Portugal,  where  by  their  assis- 
.nce,  he  was  enabled  to  effect  a  political  revolution  in 
that  Kingdom. 

It  may  be  fuither  observed,  that  at  this  very  time,  a 
bod}"-  of  British  officers  and  soldiers,  assuming  to  be 
known  as  a  British  Legion,  is  engaged  in  Spain,  in  con- 
junction with  a  native  party,  in  maintaining  a  civil  war 
within  that  country ;  and  this  body  of  British  subjects, 
as  it  must  be  well  known  to  j'^our  Lordship,  was  lately 
commanded  and  led  by  a  very  popula,  member  of  the  Bri- 
tish House  of  Commons, (8.)  who  for  his  gallantry  at  the 

(8.)     General  Sir  William  Evans. 


G3 


LETTER    TO    LORD    DURHAM. 


head  of  the  Legion,  has  recently   been  honored  with  the 
order  of  Knighthood  by   the   sovereign  of  Great  Britain. 

it  is  also  true,  if  public  report  be  not  grossly  in  error, 
that  there  are,  at  this  very  moment,  a  number  of  British 
subjects  engaged  in  arming  and  sustaining  the  people  of 
Circassia,  one  of  the  Provinces  of  Russia,  against  the  Go- 
vernment of  that  Empire,  and  as  it  is  said,  if  not  by  the 
expressed  consent,  Avithout  any  objection  or  hindrance  on 
the  part  of  the  British  Government. 

Then,  my  Lord,  if  such  instances  of  foreign  interfe- 
rence be  just,  and  the  British  subjects  I  have  mentioned 
Avere  right  in  their  acts,  I  am  at  a  loss  to  discover  by 
what  rule  I  am  adjudged  a  criminal  and  condemned  as  a 
felon. 

I  allow  this  principle,  my  Lord,  that  if  the  forces  to 
which  I  was  joined  on  Navy  Island,  or  at  any  other  place 
in  the  Province  of  Upper  Canada,  had  been  attacked  by 
Her  Majesty's  troops,  while  I  was  with  those  forces,  and 
overcome,  it  was  for  the  conquerers  to  give  me  quarter  or 
not,  as  they  saw  fit ;  and  if  so  made  a  prisoner,  the  right  to 
have  detained  me,  without  trial,  so  long  as  it  might 
please  Her  Majesty,  as  a  prisoner  of  war,  is  not  to  be 
questioned.  But,  I  know  not  where,  in  the  annals  of 
civilized  nations,  a  precedent  may  be  found  for  the  tri- 
al of  a  foreigner,  by  any  court,  taken  under  the  circum- 
stances attending  my  capture.  It  is  true,  however,  that 
during  a  late  revolution  in  Portugal,  Don  Miguel,  a  mod- 
ern Caligula,  whose  whole  history  is  but  the  detail  of 
atrocities,  upon  taking  as  prisoners  some  of  the  British 
employed  against  him,  caused  them  to  be  shot;  and  that 
the  Spanish  Pretender,  Don  Carlos,  has  also  caused 
some  of  the  British  legion,  who  had  fallen  into  his  hands 
as  prisoners,  also  to  be  executed.  But,  in  neither  case 
do  we  hear  of  any  trials.     They  were  mere  acts  of  expe- 


LETTER    TO    LOilU    DURHAM. 


69 


ivith  the 
Britain, 
n  error, 
'  British 
)eople  of 
;  the  Go- 
t  by  the 
ranee  on 

interfe- 
entioned 
:over  by 
ned  as  a 

forces  to 
[ler  place 
acked  by 
ces,  and 
uarter  or 

right  to 
it  might 

ot  to  be 
nnals  of 

the   tri- 

circum- 
['er,  that 
a  mod- 

letail  of 
British 

md  that 
caused 

Is  hands 

lier  case 
>f  expe- 


diency, adopted  by  weak  and  trembling  powers,  at  the 
caprice  of  the  moment ;  and  which  have  been  pronounc- 
ed murder  by  all  of  the  enlightened  and  civilized  of  man- 
kind— who  would  now  rejoice  as  much  in  the  destruction 
of  Don  Carlos,  as  they  have  done  at  the  overthrow  of 
Don  Miguel. 

Well  seated  power  and  conscious  strength  is  always  for- 
bearing and  merciful.  Injustice  and  cruelty  are  ever  with 
the  reverse.  Bonaparte,  standing  upon  his  last  foothold 
in  Egypt,  and  beholding  it  fast  crumbling  beneath  him, 
upon  the  pretext  of  expediency  put  to  the  sword  four  thou- 
sand Turks  whom  he  had  captured  at  Jaffa  and  El  Arish  ; 
and  a  Mexican  leader,  Santa  Anna,  lately  caused  to  be 
massacred  some  hundreds  of  unarmed  Americans,  who 
had  surrendered  to  him,  on  the  promise  of  quarter,  in 
an  engagement  near  Goliad  in  Texas.  But,  notwith- 
standing the  wholesale  murder  on  the  part  of  Bonaparte, 
he  was  compelled  to  fly  from  Egypt ,  and  Santa  Anna, 
within  the  short  space  of  a  few  days  after  the  perpetra- 
tion of  the  horrifying  act  on  his  part,  was  a  prisoner  in 
the  hands  of  the  compatriots  of  those  whom  he  had  mur- 
dered, suing  for  his  own  life  ;  and  Mexican  rule  was  at 
an  end  in  Texas. 

I  am,  my  Lord,  constrained  to  admit,  however,  that 
upon  searching  the  historical  records  of  my  own  country, 
I  find  a  very  near  parallel  to  this  coarse  of  conduct  pur- 
sued towards  me  by  Her  Majesty's  Government  in  these 
Provinces,  with  this  difference,  that  the  material  aver- 
ments contained  in  the  Charge  preferred  against  me,  did 
not  exist,  and  have  in  no  manner  been  proven  or  substan- 
tiated. About  twenty  j-ears  ago,  a  number  of  the  In- 
dian tribes  on  the  south-westjrn  borders  of  the  United 
States,  having  made  inroads  into  the  country,  marauded 
and  pillaged  the  white  settlements,   and    commenced  a 


i 


t 


70 


LETTER    TO    LORD    DURHAM. 


i 


warfare  with  our  people,  when  the  Government    of  the 
United  States  employed  General  Jackson,  with  a  small 
military  force,  to  subdue  the  turhulcnt  Indians.     He  en- 
tered the  disturbed  district,  and  there  laid  his  hands  on 
two  British  subjects,  ArhnthnrA  and  Ambrister,  whom  he 
found  with  the  Indians,  and  who  were  charged  with  hav- 
ing instigated  the  indians  to  commit  hostilities  against 
the  people  of  the  United  States.     These  men,  by  an  or- 
der of  General  Jackson,  were  tried  by  a  Court  Martial, 
and  executed  in  pursuance  of  a  sentence  of  that  court. 
This  act  of  General  Jackson,  was,  however,  in  no  man- 
ner approved  of  by  either  the  people  or  Government  of 
the  United  States.     It  was  termed  a  "  cold-blooded  mur- 
der," and  excited  the  highest  indignation  on  the  part  of 
the  people;  and  upon  the  matter  being  brought  before  the 
Senate  of  the  United  States,  a  committee  of  that  body,  to 
whom  the  matter  was  referred,  brought  in  a  report  on  the 
24th  of  January,  1819,  reprobating  the  conduct  of  Gen- 
eral Jackson,  in  that  respect,  in  the  strongest  terms.     In 
that  report  it  was  said — "  In  reviewing  the  execution  of 
Arbuthnot  and  Ambrister,  your  committee  cannot  but  con- 
sidder  it  as  an  unnecessary  act  of  severity  on  the  part  of 
the  commanding  general,  (Jackson,)  and  as  a  departure 
from  that  mild  and  humane  system  towards   prisoners, 
which  in  all  conflicts  with  savage  or  civilized  nations  has 
heretofore  been  considered  not  only  honorable  to  the  na- 
tional character,  but  conformable  to  the  dictates  of  sound 
policy.      The  prisoners  were  subjects  of  Great  Britain 
with  whom  the  United  Slates  are  at  peace.     Having  left 
their  conntry  and  united  their  fates  with  the  savages,  with 
whom  the  United  States  are  at  war,  they  forfeited  their 
claim  to  the  protection  of  their  own    government,    and 
subjected  themselves  to  the  same  treatment  which  might, 
according  to  the  practice  and  principles  of  the  American 


LETTEPt    TO    LORD    DURHAM. 


71 


Government,  be  extended  towards  those  with  whom  tliey 
were  associated.     No  process  of  reasoning  can  degrade 
them  below  the  savages  with  whom  they  were  connected. 
As  prisoners  of  war,  they  were  entitled  to  claim  from  the 
American    Government    that  protection  which  the  most 
savage  of  our  foes  have  uniformly  experienced  when  dis- 
armed and  in  our  power.     Humanity  shudders  at  the  idea 
of  a  cold-blooded  execution  of  prisoners,  disarmed  and  in 
the  power  of  the  conquerer  !"     In  another  portion  of  that 
report  the comraiittcc  say — "The  principal  assumed  by  the 
commanding    general,  (Jackson,)    '  that    Arbuthnot    and 
Ambrister,  by  uniiing  in  war  against  the  United  States, 
while  we  were  at  peace  with  Great  Britain,  became  out- 
laws and  pirates,  and  liable  to  suffer  death,'  is  not  recog- 
nized in  any  code  of  national  law.     Nothing  can  be  found 
in  the  history  of  civilized  nations  which  recognizes  such 
a  principle  except  a  decree  of  the  Executive  Directory  of 
France    during  their  short  career  of  madness  and  folly, 
which  declares  '  that  neutrals   found  on  board  enemies 
ships,  should  be  considered  as  pirates.'  " 

I  have  contended,  my  Lord,  as  it  will  be  perceived, 
that  I  have  been  tried  by  the  provisions  of  a  law  enacted 
by  the  Provincial  Parliament  of  Upper  Canada,  aside  from 
any  delegated  authority  from  the  mother  country,  and  that 
the  law  was  therefore  void  in  all  its  bearings  ;  and  I  have 
further  contended  that  if  I  were  guilty  of  all  with  which  I 
have  been  charged^  there  w^as  no  usage  recognized  by  the 
civilized  nations  of  the  earth,  which  would  justify  a  trial 
on  any  ground.     Nevertheless,  I  cannot  but  believe  your 
Lordship  will  readily  conceive  that  when  once  put  upon 
trial,  though  a  foreigner,  I  had  a  right  to  all  the  privile- 
ges of  a  subject,  and  was  entitled  to  have  my  case  adjudg- 
ed by  the  established  legal  forms  of  the  country,  and  ac- 
cording to  the  intent  and  meaning  of  the  laws  by  which  I 


w 


72 


LETTER    TO    LORD    DURHAM. 


was  tried,  as  expressed  in  the  letter  thereof,  as  much  so 
as  if  the  law  had  been  constitutional!  v  enacted,  and  I  amc- 
nable  to  its  provisions.     Yet  such  has  not  been  meted  to 


me 


Every  code  of  laws,  civil  or  martial,  provides  certain 
forms  for  the  distribution  of  justice,  and  every  deviation 
or  departure,  on  the  part  of  judges,  from  those  rules,  is 
no  less  a  violation  of  the  konor  and  dignity  which  belong 
to  the  tribunals  of  the  nation,  than  a  wrong  to  the  indi- 
vidual affected  by  it ;  and  whenever  judges  step  aside 
from  these  forms  of  the  law,  to  bring  even  the  guilty  with- 
in the  pale  of  their  tribunals  and  judgment,  they  hprome 
themselves  transgressors  of  the  law,  and  are  the  greater 
offenders.  It  was  by  such  conduct  alone  that  the  names 
of  a  Tresillian  and  a  Jefferies  have  been  immortalized 
with  the  most  unenviable  reputations ;  and  in  turning 
over  the  many  volumes  of  reported  decisions  made  by 
British  judges  in  British  courts,  since  the  granting  of  the 
Magna  Charta  by  King  John,  to  the  present  day,  it  will 
be  found  that  jurist  after  jurist  have  declared  that  in  a 
country  of  laws,  it  is  not  alone  sufficient  that  the  ofTender 
be  adjudged  guilty — but  guilty  according  to  the  law  and 
the  evidence  ;  and  that  on  trials  involving  the  life  or  liber- 
ty of  an  individual,  a  strict  adherence  to  form  is  in  all  ca- 
ses, considered  the  best  security  against  oppression  and 
injustice. 

By  the  sentence  which  has  been  passed  upon  me,  my 
Lord,  and  of  which  I  complain,  /  stand  condemned  to 
transportation^  as  afdon^for  life  ;  which  is  no  mitigated 
punishment,  but  a  sentence  worse  than  death  I  According 
to  the  terms  of  the  sentence,  I  am  to  be  loaded  with  irons, 
and  perhaps  chained  to  some  human  being  most  loath- 
some in  person  and  debased  and  degraded  in  mind,  and 
thus  dragged  from  one  extremity  of  the  globe  to  the  oth- 


NOTE. 


73 


uch  so 
I  amc- 
eted  to 

certain 
iviation 
ules,  is 

belong 
\ie  indi- 
p  aside 
ty  with- 
bpfome 

greater 
b  names 
)rtalized 

turning 
nade  by 
ig  of  the 
it  will 
hat  in  a 

offender 

law  and 

or  liber- 
all  ca* 

ion  and 


er,  and  there  consigned  to  perpetual  slavery,  subject  to 
the  contumely  and  lash  of  some  brutal  master,  or  petty 
official  tyrant,  with  no  friends  to  administer  to  my  dis- 
tress or  soothe  my  woes,  and  no  companions  but  the  thief, 
the  house-breaker,  and  the  foot-pad.  In  such  a  circum- 
stanced existence,  death  in  any  shape  would  ue  a  boon  ! 
ts  from  education  and  natural  disposition  I  am  likely  to 
be  made  to  suffer  most  from  such  a  condition  of  life.  The 
sentence  appears  to  me,  (if  intended  to  be  carried  into  ef- 
fect,) to  be  a  refinement  upon  cruelty,  which  no  act  that  I 
have  been  charged  with  could  justify;  and  I  appeal  to 
your  Lordship  to  decide,  if  aught  has  been  praven  against 
me  which  could  justify  reducing  me  to  the  condition  of  a 
felon  and  a  slave. 

With  the  hope  that  your  Lordship  will  find  an 
early  and  convenient  day  to  look  into  my  case,  and  that 
your  Lordship  virill  make  such  a  determination  thereof  as 
shall  be  dictated  by  justice  and  the  laws  of  the  British 
Empire — this  communication, 

Is  respectfully  submitted  to  your  Lordship, 
For  your  Lordship's  consideration. 

TH :  J.  SUTHERLAND. 

Citadel  of  Quebec, 
July  4,  1838. 

Note.  The  preceding  communication  was  conveyed  to  the 
Castle  of  St.  Lewis,  then  occupied  by  Lord  Durham  as  a  Govern- 
ment House,,  by  D.  M.  Chisholm,  Esquire,  a  captain  of  the  Cold- 
stream Guards,  who  had  been  appointed  to  have  the  immediate 
custody  of  my  person;  but  Lord  Durham  happening  to  be  sb&ent 
from  Quebec  at  the  time,  I  was  given  no  reply  until  the  6th  of  Au- 
gust, when  I  received  the  following  note  from  one  of  his  Lord- 
ship's Secretaries : 

Castle  of  St.  Lewis,     ^ 

Quebec,  6th  August,  1838.  $ 
Sir — I  am  commanded  by  his  Excellency  the  Governor  General 
to  acknowledge  the  receipt  of  your  letter  and  statement  addressc  J  lo 

7 


»f' ' 


74 


NOTE. 


him  on  the  4th  of  July  last,  and  to  inform  you  in  reply  that  yout- 

case  has  been  referred  to  Her  Majesty's  Government  in  EncIr«nJ. 

with  whom  alone  is  vested  the  power  of  confirming  or  nltcring  tijc 

sentence  which  has  been  passed  upon  you  j  and  that  their  decision 

will   be    ^ommunicntcd   to  the     Lieutenant  Governor   of   Ui)pci 

Cat  ada. 

I  have  the  honor  to  be,  Sir, 

Your  very  obedient  servant. 

THOMAS  E.  M.  TURTOX, 

Secretary  to  Goveiomcut. 
Th  :  J.  Sutherland,  Esquire, 

Stale  Prisoner,  Citadel. 


t-i     ■> 


'■    '  ■  ■.  •'• 


(B.) 

To  His  Excellency  Sir  George  Arthur,  Lieutenant  Go- 
vernor of  the  Province  of  Upper  Canada,  Major  Gene- 
ral,  <f  c.  noiv  at  Quebec. 

Sir — Since  I  have  been  detained  a  prisoner  in  this  for- 
tress, and  now  near  two  months  past,  the  Honorable 
Charles  Duller,  Chief  Secretary  of  the  Administration  of 
Lord  Durham,  informed  me  that  o  despatch  had  been  re- 
ceived at  the  office  of  his  Government,  notifying  "  that  Her 
Majesty's  Government  in  England  had  directed  that  I 
should  be  set  at  liberty,  and  permitted  to  return  to  my 
own  country,  on  account  of  the  irregularity  of  the  pro- 
ceedings on  my  trial.  But,  that  I  should  be  required  to 
give  security  not  again  to  enter  Her  Majesty's  domin- 
ions ;"  and  some  few  weeks  since  I  was  further  notified 
by  the  same  honorable  gentleman,  "  that  a  pardon  for  me 
had  been  transmitted  by  your  Excellency  to  the  office  of  the 
Government  here,  but  that  on  the  ground  of  some  infor- 
mality it  contained,  it  was  found  necessary  to  return  it  to 
your  Excellency  for  correction." 

I  have  also  been  informed  that  my  case  has  been  re- 
ferred to  your  Excellency,  for  a  final  disposition,  by  Her 
Majesty's  Government,  and  that  my  present  condition  is 
entirely  under  your  Excellency's  direction  and  control ; 
and,  learning  that  your  Excellency  had  arrived  at  Quebec, 
I  have  thought  that  my  situation  would  be  a  sufficient 
apology  for  troubling  your  Excellency  with  this  commu- 
nication. 

I  beg  to  inform  your  Excellency  that  in  regard  to  the 
bail  which  it  has  been  said  would  be  required  from  me,  I 
have  received  no  notice,  as  yet,  of  the  form,  nor  specifi- 
cally as  to  the  condition  ;  but  whatever  might  have  been 


76 


LETTER  TO  81U  GEORGE  ARTHUR. 


the  exactions  in  either  respect,  I  think  I  should  have  been 
able  readily  to  have  complied  with  ihem,  if  the  proposi- 
tion to  receive  the  bail  had  been  made  any  time  within  five 
or  six  weeks  after  notice  was  given  me  that  my  release  had 
been  ordered.  The  prolonging  of  my  imprisonment, 
however,  to  this  late  day  in  the  season,  when  there  are 
few  persons  here  from  the  upper  country,  will,  I  fear, 
render  it  quite  difficult  for  me  to  procure  bail  at  this  place, 
should  my  release  be  now  offered  upon  such  conditions. 
But,  would  your  Excellency  be  pleased  to  order  my  re- 
moval from  this  place  back  to  Toronto,  there,  I  think,  I 
should  find  no  difficulty  in  procuring  sureties  for  any  re- 
quired amount.  If  sent  to  Kingston,  I  have  reason  to  be- 
believe   I  could  effect  as  much  at  that  place. 

The  apparent  difficulty  which  surrounds  any  attempt 
of  mine  to  find  sureties  in  any  of  Her  Majesty's  Provinces, 
and  more  particular!^'  t  this  place,  has  induced  me  to  ex- 
amine the  principles  o(  the  exaction  of  bail,  and  upon 
such  examination,  with  the  knowledge  of  British  institu- 
tions I  possess,  I  am  unable  to  discover  in  what  manner 
security  could  be  taken  from  me,  either  to  exclude  me 
from  Her  Majesty's  dominions,  or  to  bind  me  to  keep  the 
peace  within  them,  thaC  would  be  just  and  binding  in 
law  ;  and  on  this  subject  I  addressed  a  paper  to  the  Ho- 
norable Charles  Buller,  (which  I  have  been  informed  by 
him  was  enclosed  to  your  Excellency,)  in  which  I  have 
contended  that  there  is  no  statute  or  law  which  would  le- 
galize the  exaction  of  such  bail  or  security  from  me  ;  and 
I  cannot  but  think  that  your  Excellency  will  come 
to  the  same  conclusion,  upon  examining  the  paper  transmit- 
ted to  your  Excellency,  by  me,  through  the  Honorable 
Charles  Buller,  though  all  my  reasons  may  not  appear 
cogent,  and  some  of  my  objections  may  seem  far  fetched. 
Yet,  if  your  Excellency  comes  to  the  conclusion  that  there 


ji 


LETTER    TO    SIR    GEORGE    ARTinfR. 


77 


T  been 
iroposi- 
hin  five 
asc  had 
inmont, 
ere  are 
,  I  fear, 
s  place, 
ditions. 
my  re- 
think, I 
any  re- 
n  to  be- 

attempt 
evinces, 
le  to  ex- 
id  upon 
institu- 
manner 
ude  me 
eep  the 
ding  in 
the  He- 
lmed by 
I  have 
dd  le- 
;  and 
come 
insmit- 
lorable 
[appear 
itched. 
It  there 


is  no  statvite  or  law  in  existence,  under  the  express  provi- 
sions of  which  I  may  be  required  to  give  security  as  has 
been  exacted,  I  trust  your  Excellency  will  cause  me  to  be 
set  at  liberty  in  my  own  country  without  further  delay. 

Any  undertaking  on  my  own  part,  which  might  exclude 
me  from  Her  Majesty's  dominions,  would  be  readily  en- 
tered into  and  strictly  rec;arded  by  mc  for  the  sake  of  my 
liberty;  and  if  on  an  examination  of  the  whole  matter, 
your  Excellency  determines  to  exact  security,  the  moment 
I  am  advised  your  Excellency  is  ready  to  receive  it,  and 
1  am  made  acquainted  with  the  form  and  amount  of  the 
security,  I  will  endeavor  to  procure  it ;  and  I  beg  your 
Excellency  will  then  put  me  in  a  condition  that  shall 
further  the  attainment  of  such  security. 

I  am  aware  that  unfortunately  for  me,  since  my  cap- 
ture, and  while  I  have  remained  imprisoned  in  these  Pro- 
vinces, I  have  been  mad(3nof  only  the  subject  of  abuse  for 
the  newspaper  press,  but  the  theme  of  the  resolves  of 
public  meetings,  which  must  also  be  known  to  your  Ex- 
cellency. But,  believing,  as  I  do,  that  your  Excellency 
will  allow  neither  the  pasquinadesof  the  one,  nor  the  reck- 
less advice  of  the  other,  to  have  an  influence  to  prevent  my 
obtaining  that  speedy  relief  which  is  allowed  me  by  the  es- 
tablished usages  of  the  country,  I  feel  satisfied  that  your 
Excellency  will  place  my  release  upon  the  condition  of  a 
compliance  with  no  exaction  which  is  not  compatible  with 
a  liberal  application  of  the  laws  of  the  British  Empire. 

Should  any  expression  contained  in  this  communica- 
tion, or  in  the  paper  from  me,  put  into  your  hands  by  the 
Honorable  Charles  Buller,  appear  to  have  been  couched 
in  terms  of  too  much  assurance,  I  beg  your  Excellency 
will  regard  the  fault  as  resulting  from  the  effects  of  my  pre- 
sent unfortunate  condition,  and  acquit  me  of  any  inten- 
tioa  to  appear   indecorous.     I  do   not   wish,  either,  to  be 

7* 


78 


NOTE. 


importunate,  although  T  cfiiniot  hut   express  my  desire  of 

a  determination  of  my  case.     The  misforttmes  of  my  life 

have  taupht  me  patience  in  adversity.     Yet,  it  is  natural, 

and  I  hope  it  will   not    seem    unrcasonahle,  that  I  should 

greatly  desire  to  he  relieved  from  the  torturc-s  of  suspense, 

and  a  gloomy  imprisonment. 

Very  respectfully. 

TH:  J.  SUTHERLAND. 

Citadel  of  Quehec,  ) 
October  8,  1838.      $ 


Note.  To  the  preceding  communication  I  received  no  reply 
from  Sir  George  Arthur,  although  it  was  put  into  his  hands  while 
he  was  in  Quebec  ;  and  the  only  answer  I  received  to  it  from  any 
one  was  the  following  note  from  one  of  the  attnch^^'s  of  Lord  Dur- 
ham : 

Castle  of  St.  Lewis, 

Quebec,  October  9lh,  1838, 

Sir — I  am  directed  by  the  Chief  Secretary  to  inform  you  that 

your  own  bail  will  be  taken  here  in  Quebec.    That  in  addition  to 

your  personal  security,  you  will  be  required  to  get  two  securities 

in  the  sum  of  $2000  each  ;  and   that  the  condition  of  the  security 

will  be,  "  that  in days  after  your  release  from  Quebec,  you 

shall  not  be  in  any  part  of  Her  Majesty's  dominions." 
I  am,  Sir, 

Your  Obedient  Servant. 

EDWARD  PLAYDELL  BOUVERIE. 
Th  :  J.  Sutherland,  Esquire, 

State  Prisoner,  Citadel. 


(C.) 
To  THE  Right  Honorauli:  Loki»  Glenllg,  Her  Majesty'' s 

Secretary  of  State  for  t/te  Colonics,  4'C.  ^'C.  4*c. 

My  Lord — Thomas  Jolffrsoii  Siillu'i'lund,  a  citizen  of 
llio  United  States  of  America,  now  detained  a  prisoner  in 
the  Citadel  of  Qtie])ec,  in  tlie  Province  of  Lower  Canada, 
by  Her  Majesty's  Government,  hegs  leave,  again,  respect- 
fully to  call  the  attention  of  your  Lordsliip  to  the  circum- 
stances of  his  detention  and  imprisoinnent. 

Could  I  believe,  my  Lord,  as  it  was  reported  to  liave 
been  said,  in  effect,  a  few  months  since,  ])y  an  Honorable 
Member  of  the  British  House  of  Commons,  (1.)  in  his 
place,  *'  that  Petilioiis  and  Memorials  for  relief  seldom  ar- 
rive  at  the  departments  of  Her  MaJesty^s  Government  for 
which  they  are  intended,''^  or,  could  I  believe  that  when 
this  comes  to  your  hand,  your  Lordship  Avould  not  conde- 
scend to  bestow  a  few  moment's  consideration  upon  the 
condition  of  a  stranger  you  now  liave  as  a  prisoner,  I 
should  withhold  my  pen  from  these  sheets,  and  resign 
myself  to  live  out  the  remainder  of  my  days  as  the  tenant 
of  a  dungeon. 

But,  my  Lord,  believing  it  is  otherwise,  by  your  Lord- 
ship's permission,  I  would  suggest,  that  having  been  in- 
formed by  His  Excellency  Lord  Durham,  *'  that  my  case 
had  been  referred  to  Her  Majesty's  Government  in  Eng- 
land, with  whom  alone  was  vested  the  power  of  confirming 
or  altering  the  sentence  which  had  been  passed  upon  me," 
some  time  in  the  month  of  July  last,  I  drew  up  a  state- 
ment of  the  circumstances  of  my  capture,  trial,  sentence 
and  other  matters  connected  therewith,  alleging  error  in 
the  proceedings  taken  against  me,  from  which  I  desired 
relief,  and  directing  the  same  to  your  Lordship,  procured 

(1.)  Admiral  Sir  Edward  Codrington. 


80 


LETTER    TO    LORD    GLENELG. 


it  to  be  put  into  the  hands  of  His  Excellency  Lord  Dur- 
ham, with  a  note  requesting  it  might  be  transmitted  by 
him  to  your  Lordship  :  and  having  also  been  advised  that 
a  copy  of  the  proceedings  of  my  trial,  with  my  defence, 
and  all  the  papers  and  documents  connected  therewith, 
had  been  previously  transmitted  to  your  Lordship,  I  am  to 
suppose,  thereby,  your  Lordship  is  fully  advised  of  all  the 
original  circumstances  of  my  case. 

I  would  further  suggest  for  your  Lordship's  considera- 
tion, that  about  the  20th  day  of  August  last,  the  Honora- 
ble Charles  BuUer,  Chief  Secretary  to  the  Administration 
of  Lord  Durham,  gave  me  notice  ^^  that  a  Despatch  had 
been  received  at  his  office,  [or  that  a  despatch  had  passed 
through  his  office,]  for  the  Lieutenant  Governor  of  Upper 
Canada,  from  Her  Majesty'' s  Government  in  England,  or- 
dering my  release  on  the  ground  of  the  irregularity  of  the 
proceedings  on  my  trial.^^  But,  at  the  same  itime  he  told 
me  "  that  I  loould  he  required  to  give  security  rwt  again  to 
enter  Her  Majesty^ s  dominions.'"  I  was  not,  however,  no- 
tified of  the  form  of  the  security  that  would  be  required 
from  me  until  the  8th  day  of  October  following,  when  be- 
ing informed  by  one  of  the  captains  of  the  Guards  that 
the  Lieutenant  Governor  of  Upper  Canada  was  in  Que- 
bec, I  addressed  him  a  letter,  of  which  the  annexed, 
marked  B,  is  a  copy,  (2.)  to  which  I  received  in  answer, 
a  note  from  the  Honorable  Edward  Playdell  Bouverie, 
one  of  the  attaches  of  His  Excellency  Lord  Durham, 
simply  informing  me  "  that  in  addition  to  my  own  recog- 
nizance, which  would  be  taken  at  Quebec,  I  would  be  re- 
quired to  give  two  sureties  in  the  sum  of  £500  each,  con- 
ditioned tihat  in— — days  after  I  should  be  set  at  liberty  in 
Quebec,  I  should  not  again  be  found  in  any  of  Her  Majes- 
ty^s  dominions  ;  and  that  such  security  could  alone  be  ta- 
ken by  the  Attorney  General  of  Upper  Canada,  at  Toron 

(2.)  The  same  which  precedes  this. 


LETTER    TO    LORD    GLENELG. 


91 


to ;  and  that  so  soon  as  the  Attorney  General  of  that  Pro- 
vince should  communicate  to  the  Government  here,  that 
such  security  had  been  filed,  I  would  be  set  at  liberty." 

About  the  first  of  October  last,  I  addressed  a  paper  to 
the  Honorable  Charles  Buller,  the  substance  of  which  is 
embodied  in  this  communication,  objecting  to  the  justice 
and  legality  of  the  exaction  of  security  from  me  under  the 
circumstances  of  my  case;  which  paper,  I  was  informed 
by  that  Honorable  Gentleman,  had  been  transmitted  to  the 
Lieutenant  Governor  of  Upper  Canada  ;  as  with  him  the 
disposition  of  my  case  was  left  entirely :  and,  now,  my 
Lord,  having  done  all  within  mv  power  to  effect,  (as  I 
am  circumstanced,)  for  the  procurement  of  the  sureties  re- 
quired from  me,  I  have  not  succeeded  in  obtaining  them, 
and  am  still  detained  under  the  severest  condition  of  im- 
prisonment, from  which  I  have  no  good  reason  to  expect 
release,  but  from  the  order  of  Her  Majesty's  Government 
in  England,  through  your  Lordship. 

I  have  objected,  as  your  Lordship  will  recollect,  that 
the  proceedings  taken  against  me  before  a  Militia  Gene- 
ral Court  Martial  of  the  Province  of  Upper  Canada,  by 
which  I  was  tried  at  Toronto  in  March  and  April  last, 
were  irregular  ;  and  those  objections  of  mine  it  has  been 
conceded,  as  I  am  informed,  by  Her  Majesty's  Govern- 
ment in  England,  were  wel'  'aken  ;  and  I  have  also  con- 
tended, my  Lord,  that  it  is  properly  supposed  a  general 
principle,  that  the  laws  of  every  nation  are  provided  for 
its  own  citizens  or  subjects  who  receive  protection  from 
them,  and  not  for  the  citizens  or  subjects  of  another. 
That  they  have  reference  solely  to  the  inhabitants  of  the 
country  where  the  laws  are  enacted,  and  have  force  no 
further  than  the  territories  of  the  government  which  makes 
the  laws,  extend ;  and  that  all  who  are  tried  by  the  laws 
must  be  regarded,  so  far  as  the  matters  of  the  trial  are 


r^ 


82 


LETTER    TO    LORD    GLENELG. 


>,t 


concerned,  as  ci^'''ens  or  subjects.  Then,  if  I  have  been 
correct  in  my  position,  I  once  having  been  put  upon  trial 
before  a  court  of  one  of  Her  Majesty's  Provinces,  to  be 
judged  by  Her  Majesty's  laws  for  that  Province,  (as  it 
was  alleged,)  although  a  citizen  of  the  United  States  of 
America,  and  not  a  subject  of  Her  Majesty,  and  tried  as  a 
citizen  of  the  United  States,  (which  I  conceive  to  be  an 
anomaly  in  criminal  proceedings,)  by  being  put  upon  such 
trial,  I  was  thereby  vested  with  all  the  privileges  and 
rights  of  a  subject,  in  the  fullest  extent,  so  far  as  the  trial 
and  the  matters  connected  therewith  were  concerned : 
and  I  will  not  believe  you  will  tell  me,  my  Lord,  that 
Her  Majesty  has  one  rule  of  law  for  her  own  subjects, 
and  another  for  the  citizens  of  other  countries  ;  and  as 
Her  Majesty's  Government  have  conceded  the  irregularity 
of  the  proceedings  on  my  trial,  and  f^r\  that  ground  have 
ordered  my  release,  and  if  I  understand  correctly,  not  at 
all  with  regard  to  myself,  but  as  a  matter  of  public  jus- 
tice, and  respect  for  the  laws  of  the  British  nation,  which 
Her  Majesty's  Ministers  deem  to  have  been  .iolated. 
Then,  it  follows,  if  I  have  been  iilegall)''  condemned,  as 
has  been  urged  and  admitted,  the  natural  as  well  as  legal 
presumption,  (without  reference  to  what  appeared  on  the 
trial,)  is  that  I  should  have  been  acquitted  had  the  pro- 
ceedings been  regular ;  and  if  acquitted,  the  right  of  a 
subject  which  had  been  conferred  upon  me,  guarantied  a 
full  and  perfect  discharge  from  every  part  of  th«  accusa- 
tion ;  and  I  do  think,  my  Lord,  that  such  a  conclusion  is 
by  no  means  the  result  of  a  strained  argument. 

With  the  people  of  the  most  enlightened  and  polished 
nations,  such  acts  as  are  deemed  to  be  crimes  or  offences, 
are  made  conventional  matters  ;  constitutions  of  govern- 
ment and  laws  are  formed  for  their  adjustment,  and  noth- 
ing !•  k'ft  open  to  the  caprice  of  the  individual  who  may 


e  been 
)n  trial 
,  to  be 
,  (as  it 
tates  of 
ed  as  a 
»  be  an 
)n  such 
;es  and 
he  trial 
lerned : 
•d,  that 
objects, 
and  as 
trularitv 
id  have 
,  not  at 
blic  jus- 
which 
iolated. 
ined,  as 
as  legal 
on  the 
le  pro- 
it  of  a 
mtied  a 
accusa- 
usion  is 

)olished 
fFences, 
govern- 
id  noth- 
ho  rnav 


LETTER  TO  LORD  GLENELG. 


83 


chance  to  exercise  an  executive  or  judicial  authority.  The 
offence  is  clearly  defined  and  the  laws  made  specifically 
to  provide  the  process  for  the  application,  as  well  as  the 
penally  itself.  So  I  have  understood  it  to  prevail  with  the 
people  of  the  British  Empire:  yet,  by  Her  Majesty's  Go- 
vernment, in  violation  of  this  rule,  as  I  believe,  I  find  my- 
self now  detained  a  prisoner. 

In  reviewing  the  circumstances  of  my  detention,  I  have 
looked  in  vain  for  a  motive  of  national  interest  or  expedi- 
ency ;  and  have  alike  failed  to  discover  Avherein  a  public 
benefit  to  the  British  people  could  possibly  result  from  it ; 
and  in  the  absence  of  the  appearance  of  any  fact  which 
could  lead  me  to  suppose  that  in  my  present  imprisonment 
any  such  object  is  intended  or  sought,  I  can  but  regard 
my  detention  at  this  time  as  the  result  of  personal  ani- 
mosity and  prejudice  ;  it  appearing  palpable  to  me  that  I 
am  not  now  deprived  of  my  liberty  in  accordance  with  any 
regular  course  of  the  laws  and  customs  of  the  British  Em- 
pire. I  have  been  charged,  it  is:  true,  with  the  commis- 
sion of  ofTences  against  Her  Majesty's  laws,  in  the  Cana- 
da':'  .i.nd  b}  those  laws  I  have  been  put  upon  trial.  But, 
then,  there  has  been  an  entire  failure,  regularly  to  fix  up- 
pon  me  the  penalty  of  those  laws  by  which  I  have  been 
tried  ;  and  when  by  their  provisions  I  am  unquestionably 
entitled  to  my  discharge  from  further  jeopardy  or  harm,  I 
am  still  held,  in  violation  of  those  laws,  and  subjected  to 
a  degrading  imprisonment.  I  am  not  conscious  that  my 
conduct  in  any  instance  or  respect,  has  been  such  that  it 
should  deny  me  the  grace  extended  to  others  taken  and 
charged  under  similar  circumstances  with  myself,  or  which 
could  be  made  to  warrant,  (even  as  a  matter  of  expedien- 
cy,) a  violation,  by  the  authorities  of  the  government,  of 
the  established  laws  of  the  British  Empire,  for  the  mere 
purpose  of  brint^ing  harm  to  my  person. 


w^ 


84 


LETTER    TO    LORD    GLENELG. 


As  1  have  neither  interest  nor  property  within  these  Pro- 
vinces, [never  having  resided  for  any  time  in  any  of  Her 
Majesty's  dominions  as  an  inhabitant,]  I  have  assured  the 
Lieutenant  Governor  of  the  Province  of  Upper  Canada, 
that  I  was  prepared  to  pledge  myself  in  any  manner  thai 
might  bo  prescribed  not  again  to  enter  any  of  Her  Majes- 
ty's dominions,  without  first  having  obtained  the  consent 
of  the  Government  thereof,  upon  the  condition  of  being 
set  at  liberty  and  permitted  to  return  to  my  own  country. 
But  I  have  been  told,  however,  that  my  word  is  valueless  in 
this  respect,  and  that  I  must  give  other  security  before  I 
can  be  discharged.  Under  these  circumstances,  I  desire 
to  be  allowed  to  inquire  into  '  e  justice  and  propriety  of 
such  a  demand,  as  I  believe  1  shall  be  able  to  convince 
your  Lordship,  in  this  paper,  that  it  cannot  be  sustained 
by  the  laws  and  usages  of  the  British  Empire. 

If  I  am,  my  Lord,  correctly  instructed  in  the  law,  in 
order  to  collect  the  penalty  of  a  bond  or  recognizance  af- 
ter the  condition  has  been  forfeited,  recourse  to  a  court  of 
law  would  be  necessary,  and  in  such  a  court  no  collection 
of  th  penalty  can  be  made  unless  the  bond  or  recogni- 
zance ^hall  appear  to  have  been  taken  in  pursuance  of 
the  provisions  of  some  express  statute  or  other  establish- 
ed law  of  the  Province  or  Empire ;  and  upon  some  pre- 
vious inquiry,  I  am  led  to  believe,  there  is  no  statute,  or 
law,  in  existence  and  in  force,  in  any  of  Her  Majesty's 
dominions,  which  would  give  validity  to  bail  or  security 
taken  from  me  under  the  circumstances  of  my  case.  In 
the  civil  law,  it  is  understood,  obligations  are  created  be- 
tween man  and  man  by  consideration  and  agreement,  and 
that  the  least  restraint  of  a  party  at  the  time  of  the  ma- 
kmg  of  an  obligation,  invalidates  the  whole.  Not  so  in 
the  operation  of  the  criminal  law.  There,  every  exaction 
is  made  while  the   party    from  whom  it  is  taken  is,  or  is 


LETTER    TO    LORD    GLENELG. 


85 


le  Pro- 
jI"  Her 
rcil  the 
anada, 
jr  thai 
Majes- 
ionsenl 
'  being 
ountry. 
eless  in 
efore  1 
desire 
iety  of 
onvince 
istained 

law,  in 
ince  af- 
court  of 
lUection 
ecogni- 
ance  of 
ablish* 
e  pre- 
|tute,  or 
ijesty's 
lecurity 
;e.     In 
Ited  be- 
t,  and 
Ihe  ma- 
t  so  in 
action 
,  or  is 


supposed  to  be,  under  restraint  ;  and  therefore  the  hiw 
allows  no  exaction  to  be  made  except  when  autho- 
rized by  the  express  provisions  of  some  statute,  or  in  the 
course  and  practice  of  the  common  law,  which  is  equally 
expressed  and  defined. 

It  will  be  recollected  I  have  neither  been  indicted,  nor 
charged  with  oHence  in  any  manner,  in  any  court,  or  be- 
fore any  oflicer  known  to  the  common  law ;  and  only 
when  such  charges  have  been  preferred  on  oath,  and  in 
some  manner  substantiated,  could  bail  be  required  of  me 
according  to  that  law  ;  as  also,  it  should  be  recollected 
that  the  only  proceed ins^^s  which  nave  been  taken  against 
me,  were  before  a  Military  tribunal  which  knows  nothing 
of  bail  or  sureties,  and  which  has  long  since  been  dissolved, 
and  ceased  to  exist  ;  and  no  court  will  be  found,  I  appre- 
hend, to  recognize  the  right  of  executive  power,  by  a  mere 
sic  rolo,  to  give  validity  to  bail  taken  aside  from  the  esta- 
blished provisions  of  the  law.  But,  should  it  be  urged, 
that  as  I  now  stand  convicted  of  a  charge,  and  under  sen- 
tence, therefore  the  government  may  make  it  aconditionof 
ray  release,  that  I  give  such  security  :  to  this  I  reply, 
the  conviction  is  admitted  to  have  been  illegal,  and 
therefore  carries  nothing  with  it  ;  and  had  the  conviction 
been  regular,  it  would  not  be  different,  as  it  was  a  convic- 
tion by  a  Court  Martial,  which  I  understand  the  law  and 
the  practice  to  forbid,  even  Majesty  itself,  to  change  or  al- 
ter ;  (except  as  an  act  of  mercy  in  answer  to  the  prayer 
of  the  condemned  ;)  though  it  may  be  mitigated  in  its  ex- 
ten^  or  annulled  for  irregularity  by  the  proper  officer. 
Nevertheless,  the  sentence  against  me  is  already  altered} 
as  instead  of  being  imprisoned  in  pursuance  of  the  award 
of  the  Court  Martial  by  which  I  was  tried,  I  am  now  de- 
tained in  default  of  sureties  to  abstain  from  that  which  it 
is  7iat  unlawful  for  me  to  do. 

8 


w 


86 


LETTER   TO    LORD    GLENELG. 


When  we  come  to  look  for  a  statute  under  the  provi- 
sions of  which  security  might  be  required  from  me,  "  not 
again  to  be  found  within  any  of  Her  Majesty's  domin- 
ions," we  find,  my  Lord,  that  there  is  a  treaty  (3.)  in  full 
force  and  eflect  between  the  United  States  of  America,  of 
which  Republic  I  am  a  free  citizen,  and  the  United  King- 
dom of  Great  Britain  and  Ireland,  whereby  the  right  is  se- 
cured to  me,  as  a  citizen,  freely  and  at  all  times,  in  a 
peaceable  manner  to  enter  and  come  into  Her  Majesty's 
Provinces  in  America,  for  the  pursuit  of  commerce  ;  and 
while  that  treaty  remains  in  force  between  the  two  coun- 
tries, no  statute,  or  law,  could  exist  in  Her  Majesty's  do- 
minions to  exclude  me  from  them,  or  to  authorize  the  ex- 
action of  security  from  me  to  abstain  from  the  exercise  of 
the  privilege  granted  by  the  treaty,  in  good  faith  with  the 
government  of  my  country,  ar.\d  without  repugnance  to 
that  treaty,  which  is  a  part  and  parcel  of  the  laws  of 
the  British  Empire  ;  and  I  believe  we  should  find  none; 
and  without  such  a  statute,  the  bail,  if  taken,  would  be  al- 
together nugatory. 

(3.)  Extract  from  Jay's  Treaty. — "  It  is  agreed,  that  it  ahall,  at  all 
times,  be  free  to  his  Majesty's  subjects,  and  to  the  citizens  of  the  Uni- 
ted Slates,  and  also  the  Indiana  dwelling  on  either  side  of  the  said  boun- 
dary line,  freely  to  pass  and  repass  by  land  or  inland  navigation,  into  the 
respective  territurics  and  countries  of  the  two  parties,  on  the  continent 
of  America,  (the  country  within  the  limits  of  the  Hudson's  Bay  company 
only  excepted,)  and  to  navigate  uli  the  lakes,  rivers  and  waters  thereof, 
and  freely  to  carry  on  trade  and  commerce  with  each  other.  But  it  is  un- 
derstuud  that  this  article  does  not  extend  to  the  admission  of  the  vessels 
of  the  United  Slates  into  the  senports,  harbors,  bays,  or  creeks  of  his  Ma- 
jesty's said  territories  ;  nor  into  such  parts  of  the  rivers  in  his  Ma- 
jesty's Naid  territories  as  are  between  the  mouth  thereof,  and  the 
highest  ports  of  entry  from  the  sea,  except  in  small  vessels  trading  bona 
fide  between  Montreal  and  Quebec,  under  such  regulations  as  shall  be  es- 
tablished to  prevent  the  possibility  of  any  frauds  in  this  respect ;  nor  to 
the  adnussion  of  British  vessels  from  the  sea  into  tlie  rivers  of  the  United 
States,  aeyond  the  highest  poris  of  entry  for  vessels  from  the  sea.  The 
river  Mississippi  shall,  however,  according  to  the  Treaty  of  Peace,  be  en- 
tirely open  to  both  parties  ;  and  it  is  further  agreed,  that  all  the  ports  and 
places  on  its  eastern  side  to  whichsoever  of  the  parties  belonging,  may 
freely  be  resorted  to,  and  used  by  both  parties,  in  as  ample  a  manner  as 
any  of  the  Atlantic  ports  or  places  of  the  United  States,  or  any  of  thfi 
ports  or  places  of  his  M;ijesty  in  (ireat  Britain." 


LETTER  TO  LORD  GLENELG. 


87 


provi- 
,  "  not 
lomin- 
in  full 
rica,  of 
L  King- 
It  is  se- 
es, in  a 
ajesty's 
e ;  and 
o  coun- 
ity's  do- 

the  ex- 
3rcise  of 
with  the 
lance  to 

laws  of 
fid  none ; 
[Id  be  al- 


It  cannot  be  denied,  that  if  I  had  been  an  inhahitant  of 
any  of  Her  Majesty's  dominions,  and  committed  offences 
against  her  laws,  I  might  have  been  tried  by  those  laws, 
and  if  convicted,  sentenced  to  banishment ;  and  if  regu- 
larly convicted,  so  as  to  give  the  government  legal  custo- 
dy of  my  person,  if  I  had  been  sentenced  to  other  punish- 
ment of  a  severer  nature,  that  sentence  might  have  been 
changed  or  altered  to  banishment.  But,  I  have  never  been 
an  inhabitant  of  any  of  Her  Majesty's  dominions,  nor  had 
I  passed  a  night  under  the  protection  of  her  flag,  until  I 
became  a  prisoner ;  and  it  would  be  necessary  that  I 
should  first  have  come  peaceably  within  Her  Majesty's  do- 
minions, and  been  amenable  to  her  laws,  which  I  have 
not,  before  I  could  legally  be  banished  from  them.  In 
all  the  proceedings  which  have  been  taken  against  me  by 
Her  Majesty's  Government,  I  have  been  recognized  as  a 
citizen  of  the  United  States,  to  which  country  I  belong, 
and  here  stand  legally  convicted  of  no  offence. 

Then,  again ;  the  bail  required,  presents  a  serious  objec- 
tion in  its  form  and  effect.  According  to  the  procedure 
of  British  Criminal  Jurisprudence,  (if  I  rightly  understand 
it,)  the  sureties,  whether  they  be  taken  for  an  appearance, 
for  the  peace,  or  for  any  other  purpose,  -aken  in  pursu- 
ance of  the  provisions  of  a  statute,  or  in  the  course  and 
practice  of  the  common  law,  receive  the  principal  into  their 
custody,  and  are  supposed  to  retain  him  to  answer  the  con- 
ditions of  the  bond  or  recognizance,  and  by  the  establish- 
ed laws  of  England  and  the  every  day  practice  of  Courts 
of  Criminal  Jurisdiction,  bail,  or  sureties,  at  any  time  they 
fear  their  bond  or  recognizance  will  be  forfeited  by  the  prin- 
cipal, or  when  for  any  reason  they  become  dissatisfied  with 
remaining  longer  as  bail  or  sureties,  by  the  aid  of  a  bail 
piece,  or  certificate  of  recognizance,  are  allowed  to  lay 
their  hands  upon  the  principal  and  surrender  him  to  the 


88 


LETTER    TO    LOKD    ttLENELG. 


Court  or  Judge  having  cognizance  of  tiie  matter  ;  and 
on  making  such  surrciulor,  the  bail  or  sureties  are  exon- 
erated; and  the  principal  neglecting  to  give  new  bail  may 
be  committed.  But,  this  privilege  of  sureties,  which  is 
founded  in  justice  and  equity,  would  be  denied  those  re- 
({uired  of  me ;  and  the  moment  they  signed,  they  would 
be  perpetually  and  irrevocably  bound,  as  I,  instead  of  be- 
ing placed  in  their  custody,  as  in  the  usual  manner  of  bail- 
ment, to  answer  the  conditions  of  the  recognizance,  would 
by  the  very  condition  of  the  security  required,  he  placed 
out  of  their  control.  It  strikes  me  as  reasonal^le,  that  bail 
taken  in  such  a  manner,  so  contrary  to  the  spirit  of  Brit- 
ish institutions,  and  as  I  believe,  entirely  without  prece- 
dent, should  the  bonder  recognizance  which  might  be  ta- 
ken from  me,  be  forfeited,  the  sureties,  by  the  principles 
of  justice  and  of  law,  would  be  entitled  to  relief. 

In  the  proceedings  of  the  criminal  law,  bail  is  only  re- 
quired, when  the  party  from  whom  the  exaction  is  made, 
is  under  a  degree,  at  least,  of  impeachment  of  character ; 
and  in  the  letting  to  bail,  regard  is  had,  no  less  to  what 
the  bail  may  have  power  to  effect  and  enforce,  than  to  the 
probable  good  faith  of  the  principal  towards  the  sureties ; 
and  the  requirement  of  bail  is  always  accompanied  with 
the  belief,  that  there  will  be  a  due  compliance  with  its 
conditions  ;  and  it  is  never  taken  with  the  view  to  the 
acquisition  of  the  amount  of  the  penalty.  Therefore,  it  is 
never  required  for  the  performance  of  more  than  is  prac- 
ticable for  sureties  to  ensure  by  reasonable  exertions. 
Hence  arises  the  practice  in  criminal  courts  to  grant  relief 
to  sureties,  where  recognizances  are  forfeited,  whenever 
the  bail  come  in,  and  establish  to  the  satisfaction  of  the 
court  that  they  have  used  due  diligence  to  procure  a  per- 
formance of  the  conditions  of  the  recognizance,  and  that 
the   undertaking   has  been   in  good   faith  on   their  part. 


LETTER    TO    LORD    GLENELG. 


Keasoning  thus,  if  I  were  to  be  required  to  give  security 
to  remain  in  this  or  any  of  Her  Majesty's  Provinces,  the 
undertaking  on  the  pirt  of  sureties  for  that  purpose,  would 
be  feasible  enough.  But  who  will  suppose  that  the  two 
sureties  I  am  required  to  give,  would  be  capable,  with  their 
own  might,  of  keeping  me  out  of  Her  Majesty's  domin- 
ions, when  I  am  required  by  the  conditions  of  the  security 
itself  to  go  beyond  their  reach  ? 

The  effect  of  this  requirement  of  bail  from  me  is  a  sen- 
tence of  banishment  from  Her  Majesty's  dominions ;  and 
it  is  common,  and  I  believe  reasonable,  to  suppose  the 
government  fully  competent,  without  extrinsic  aid,  to  en- 
force the  sentence  of  its  courts  and  the  execution  ut  its 
laws  ;  and  I  do  not  understand,  my  Lord,  that  in  case  of 
the  banishment  of  a  subject  by  sentence,  or  by  the  com- 
mutation of  another  sentence,  it  has  been  usual  in  the 
practice  of  Her  Majesty's  Government,  to  require  securi- 
ty against  a  return ;  although  a  subject  might  be  suppos- 
ed to  be  among,  or  in,  the  vicinity  of  his  friends,  and  as 
having  the  ability  of  giving  such  security,  if  required ; 
which  supposition  cannot  be  applied  to  me,  a  foreigner 
and  a  stranger  in  the  land. 

It  has  come  to  me  by  information  I  suppose  to  be  au* 
thentic,  that  Her  Majesty's  Government  in  England  have 
decided  in  the  case  of  Thomas  S.  Brown,  and  others, 
"  that  no  person  can  be  legally  banished  from  Her  Ma- 
jesty's dominions,  without  trial.^''  Then,  I  may  ask  what 
is  the  difference  in  value  between  an  illegal  trial,  and  no 
trial  at  all  ?  In  my  case,  1  was  illegally  tried,  and  on 
that  ground  Her  Majesty's  Government  have  ordered  the 
sentence  of  the  Court  against  me  to  be  vacated,  as  a  mat- 
ter of  respect  for  the  laws  of  the  nation  ;  and  as  it  has 
been  declared  that  in  my  case  there  was  a  departure  from 
the   established  forms   of  the  law  for  the  distribution  of 

8* 


I' 


w 


90 


LETTER    TO    LORD    (iLENELG. 


!' 


W 


justice,  it  is  reasonable  to  believe  it  had  been  the  inten- 
tion of  Her  Majesty's  Government  that  I  siionld  have 
been  absolved  from  every  effect  of  the  sentence  ;  as 
otherwise,  there  would  be  no  propriety  in  meddlinji; 
with  it.  That  no  one  should  be  twice  judged  for 
the  same  oflbnce,  is  a  principle  embraced,  as  I  have  read, 
within  the  British  Constitution;  yet,  I  am  re-jud«]red,  by 
executive  authority,  on  the  grounds  of  the  same  Charge 
upon  which  I  have  been  once  adjudged  by  a  Court 
Martial,  and  an  exaction  made  as  the  condition  of  my 
release,  v/hich  is  in  itself  a  sentence  of  banishment, 
as  much  so  in  its  effect  as  the  sentence  passed  upon 
Thomas  S.  Brown,  which  has  been  annulled^  as  not  hav- 
ing b'  en  based  upon  proper  legal  proceedings.  But  this 
demand  of  me  for  security,  in  its  present  effect,  operates 
npon  me  as  a  much  severer  sentence.  If  it  was  merely 
banishment  in  its  ordinary  coarse,  I  should  have  little 
reason  to  complain.  As  it  is,  however,  in  default  of  a 
compliance  with  the  demand  for  security,  which  I  have 
no  p(3wer  to  give,  I  am  consigned  to  the  worst  condition 
of  imprisonment.  Again,  my  Lord ;  Sir  William  Black- 
stone  in  the  first  volume  of  his  Commentaries  informs  us 
"  that  every  Englishman  may  claim  a  rii  ht  to  abide  in 
his  own  country  so  long  as  he  pleases  ;  and  not  to  be 
driven  from  it  unless  hy  the  sentence  of  the  law  ;"  and 
he  further  remarks  "  that  there  is  no  power  in  the  coun- 
try, except  the  authority  of  the  Parliament,  which  can 
send  any  subject  of  England  out  of  the  land  against  his 
Avill — no,  not  even  a  criminal ;"  and  will  you,  my  Lord, 
treat  a  stranger  with  less  regard  to  his  rights  than  a  sub- 
ject, after  having  so  far  naturalized  him,  as  to  put  him  on 
trial  by  your  laws  ? 

If  the  object  be  to  exclude  me  from  Her   Majesty's  do- 
minions, and  I  were  able  to  give  the  security  exacted,  the 


LETTER    TO    LORD    GLENELG. 


91 


iiUon* 

have 
;e  ;  as 
[Idliiij; 
?d  for 
B  read, 
:c(l,  by 
Viarge 

Court 

of  my 
hmont, 
d  upon 
ot  Imv- 
}iit  thirf 
perates 
merely 
\'Q  little 
lit  of  a 

I  have 
indition 

Black- 

ms  us 

ide  in 

to  be 

;"  and 

e  coun- 
h   can 

inst  his 

Y  Lord, 
a  sub- 

him  on 

ty's  do- 
ted, the 


b 


sureties  must  necessarily,  (as  required,)  be  ^ubject.s  and 
inhabitantsof  f jiesc  Provinces;  and  then,  the  ronse()uence 
of  the  security  would  be  no  more  than  the  change  of  plight- 
ed faith  from  the  Government  to  the  two  sureties  ;  as  they 
could  have  no  control  over  my  person.  Will  it  then  ho 
presumed  that  I  should  regard  as  loss  binding  a  promise 
made,  on  my  own  motion,  to  Her  Majesty's  Governinenr, 
than  I  would  one  made  to  two  private  individuals  of 
Her  Majesty's  subjects?  Subjects,  who  nuiy  be  to-day  right 
loyal,  though  to-murrow  they  may  clumge  their  opinions 
and  join  others  in  another  attempt  to  subvert  Her  Majes- 
ty's Government  in  these  Pri^vinces  ;  and  having  staked 
iheir  whole  fortunes,  as  well  as  their  lives,  hy  their  own 
acts,  may  then  desire  me  to  assist  them  in  the  accomplish- 
ment of  ends,  from  which  to  restrain  me,  (as  I  am  to  sup- 
pose from  the  nature  of  the  security  required,)  they  had 
become  my  sureties  ;  and  th(;y  would  be  able  to  approach 
me  with  the  argument  "  that  the  government  having  re- 
garded my  word  as  nothing,  I  was  bound  to  place  no  more 
value  on  it  than  Her  Majesty's  Government  had  accepted 
it  for."  As  to  mv  own  recognizance,  it  would  be  as  effect- 
ive to  exclude  m  from  the  country,  taken  without,  as 
.ith,  sureties. 

If  this  required  security  can  be  legally  exacted  from 
n.  there  art-  greater  hard  hips  attending  the  demand, 
than  might  bt  apparent  at  first  view.  It  is  often  thought, 
my  Lord,  by  thr-^e  fortunate  people  who  have  never  been 
required  to  furnish  a  security  in  their  lives,  that  a  man 
possessing  any  character  a*  all,  could  hardly  be  without 
some  friends,  ready  to  perform  the  kind  office  of  sureties 
when  desired.  But,  under  the  most  ordinary  circum- 
stances, io!. .male  indeed  must  be  the  man,  (however  ex- 
alted hi';  cl  aracter,  or  however  much  the  bright  eye  of 
friendship  may  have  glistened  around  his  path,)  of  whom 


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92 


LETTER    TO    LORD    GLENELG. 


bail  has  been  required  by  the  hand  o.  the  law,  and 
he  has  not  become  fully  sensible  of  this  general  truth, 
sung  by  aonco  well  known  British  bard  : 

"  Friendship,  alas,  is  hut  a  name, 

A  charm  that  lulls  to  sleep  ; 
A  shade  that  fullows  wealth  and  fame, 

And  leaves  the  wretch  to  weep." 

Where,  then,  shall  I  expect  to  find  sureties  to  sign  for 
me  under  the  unusual,  and  as  I  think,  most  extraor- 
dinary conditions  required  ?  If  I  have  friends,  they 
are  citizens  of  a  foreign  country  to  this,  residing  at  a 
great  distance  from  these  Provinces  ;  and  should  they  of- 
fer themselves  as  sureties  for  me,  they  would  not  be  re- 
ceived, as  they  have  neither  estates  nor  effects  within 
Her  Majesty's  dominions. 

In  these  Provinces  I  have  no  personal  friends,  nor  even 
acquaintances ;  and  in  my  previous  communication,  I 
have  stated  to  your  Lordship  the  full  extent,  and  all  of 
the  circumstances  of  my  connexion  with  the  political  af- 
fairs of  Upper  Canada :  to  the  people  of  which  Province, 
I  am  now  to  look  for  bail.  Had  I,  my  Lord,  been  engaged 
in  a  successful  operation,  it  can  hi  'dly  be  doubted  but  I 
would  then  have  been  able  to  behold  friends  around  me. 
Now  it  is  very  different.  If  there  were  of  the  inhabitants 
of  that  Province,  persons  who  might  have  been  willing  to 
make  themselves  responsible  for  my  release,  some  of  them 
are  now  in  the  same  unfortunate  condition  with  myself; 
others  have  fled  from  the  country,  to  avoid  such  imprison- 
ment I  while  some  have  been  expatriated  by  the  govern- 
ment, and  others  have  expatriated  themselves ;  and,  as 
of  the  persons  who  hav3  been  charged  with  political 
offences  in  that  Province,  there  having  been  lately  a  great 
number  discharged  upon  bail,  it  is  reasonable  for  me  to 
believe  that  many  mdividuals  who  might  have  been  dis- 
posed to  sign  as  sureties  in  my  behalf,  have  already  en- 


cuii 


LETTER    TO    LORD    GLENELG. 


9.3 


w,  and 
truth, 


sign  for 
extraor- 
s,  they 
ing  at  a 
they  of- 
3t  be  rt  ■ 
s  within 

lor  even 
nation,  I 
nd  all  of 
itical  af- 
'rovince, 
engaged 
d  but  I 
ind  me. 
abitants 
illing  to 
of  them 
myself ; 
prison- 
govern- 
and,  as 
political 
( a  great 
r  me  to 
een  dis- 
ady  en- 


cumbered themselves  to  an  extent  in  that  wav,  which  en- 
lirely  for  ids  their  now  offering  themselves  for  mc. 
There  are  others  wliom  I  apprehend  would  consent  to  en- 
ter tiie  requir-.'d  security  for  me  couhl  they  do  so  without 
subjecting  themselves  to  a  charge,  or  suspicion,  of  disloy- 
alty ;  and,  as  they  fear,  even  insult,  for  doing  so.  I  am 
forced  to  this  opinion,  from  a  knowledge  of  an  attempt 
made  by  private  individuals,  and  as  I  believe,  for  private 
motives,  to  influence  the  Government  unfavorably  towards 
me  ;  and  therefore,  I  may  now  expect  those  persons  will 
procure  every  obstacle  within  their  control,  to  be  thrust  in 
the  way  to  the  attainment  of  my  liberty. 

Again,  my  Lord  ;  instead  of  having  been  retained  in 
the  Province  of  Upper  Canada,  where  I  was  charged  and 
tried,  and  among  the  people  from  whom  I  am  now  requir- 
ed to  procure  two  sureties,  I  have  been  removed  into  this 
Province,  six  or  seven  hundred  miles  distant,  where  I  am 
a  stranger,  and  where  I  had  never  before  placed  my  foot 
upon  the  soil.  Here  I  have  remained  confined  in  a  dun- 
geon, and  not  permitted  to  make  acquaintance,  hold  in- 
tercourse, or  even  speak  to  any  individuals,  except  the 
military  gentlemen  under  whose  charge  I  am.  Thus, 
when  I  am  asked  for  bail,  the  very  means  of  procuring 
it.  as  it  is  plain,  are  withheld  from  me  !  I  can  see  no  in- 
dividuals to  inspire  them  with  confidence  to  become  my 
sureties,  nor  to  appeal  to  their  sympathies  in  my  behalf. 
I  am  not  now,  nor  have  I  been  allowed  to  address  any  per- 
son by  letter,  except  it  be  an  open  communication  ;  and 
I  have  reason  to  believe  there  are  persons  in  the  Pro- 
vince of  Upper  Canada,  who  Avould  cause  the  security  re- 
quired for  my  release  to  be  filed  for  me,  could  I  see  them, 
or  address  them  in  such  a  manner  as  would  be  acceptable 
to  them  ;  hut  they  will  not  receive  a  letter  from  me  which 
has  passed  unsealed  through  the  hands  of  third   -persons. 


1.'.: 


94 


LETTER    TO    LORD    GLENELU. 


ii 


(Ri 


If 


Thus  circumstancod,  my  Lord,  while  imprisoned  in  a 
foreign  country,  as  much  cut  off  from  the  world  as  if  I 
were  coffined,  can  it  be  expected  that  I,  without  friends  to 
act  in  my  behalf,  or  even  the  privilege  of  confidential  cor- 
respondence, should  be  able  to  procure  bail  in  another 
foreign  country,  where  I  am  also  a  stranger  ?  I  am  also 
surrounded  by  additional  difficulties.  There  are  other  indi- 
viduals who  have  been  concerned  in  the  late  attempt  to 
effect  a  political  revolution  in  the  Province  of  Upper  Ca- 
nada, who  by  the  assistance  of  their  friends,  with  misrep- 
resentation and  falsehood,  have  labored  to  magnify  my 
acts,  and  give  them  an  importance  they  have  never  in 
fact  possessed ;  and  they  have  attributed  to  me  conduct 
I  had  never  conceived,  and  proceedings  I  had  not  partici- 
pated in,  with  the  intent  to  throw  their  own  acts,  or  those 
of  their  friends,  in  the  shade,  and  to  divest  them  of  their 
due  importance,  in  order  to  screen  themselves  from  threat- 
ened punishment. 

Now,  if  I  were  put  in  a  condition  to  bring  my 
case  before  one  of  Her  Majesty's  superior  courts  of  law, 
I  should  not  fail,  there  to  procure  an  order  of  prohibition 
against  the  sentence  which  has  been  passed  upon  me, 
when  an  unconditional  release  would  follow ;  and  I  can- 
not refrain  from  the  inquiry  of  your  Lordship,  if  it  be 
compatible  with  even  handed  justice,  longer  to  detain 
me  in  default  of  the  sureties  required  ? 

How  other  men  may  feel  in  like  circumstances,  my 
Lord,  I  know  not ;  but  as  for  myself,  it  required  but 
a  portion  of  that  pride  of  spirit  which  is  in  accord- 
ance with  my  nature,  to  make  me  prefer  death  in  any 
shape,  to  a  life  of  prolonged  misery  and  degradation. 
Hence  it  has  been  impossible  that  I  should  regard  the 
sentence  which  has  been  passed  upon  me  as  one  of  any 
mitigated  severity.     If  the  act  of  Her  Majesty's  Govern- 


LETTER    TO    LORD    GLENELG. 


95 


I   in  a 
as  if  I 
^nds  to 
ial  cor- 
inother 
im  also 
erindi- 
smpt  to 
per  Ca- 
misrep- 
lify  my 
lever  in 
conduct 
partici- 
or  those 
of  their 
1  threat- 

g  my 
of  law, 
libition 
pon  me, 
d  I  can- 
if  it  be 
detain 


ment  in  making  void  that  sentence  is  only  to  vary  my 
condition  so  as  to  consign  me  to  the  narrow  precincts  of  a 
dungeon,  where,  shut  out  from  the  face  of  heaven,  with 
my  steps  circumscribed  to  twice  the  length  of  my  body — 
I  am  to  breath  over  the  same  atmosphere  day  by  day  for 
an  unlimited  period,  trusting  to  the  mercy  of  my  God  to 
forgive  my  sins,  I  could  no  longer  dread  the  approach  of 
the  moment  that  should  release  me  from  the  accumulated 
miseries  of  my  life. 

This  papci ,  my  Lord,  I  have  drawn  up  in  my  cell,  by 
the  aid  of  a  rush  light,  without  reference  to  books  and 
authorities,  for  I  have  none  to  refer  to ;  and  without  con- 
sultation with  friends,  or  advice  of  counsel,  as  I  have 
neither  here  to  confer  with.  The  statement  of  my  condi- 
tion may,  perhaps,  seem  a  florid  account,  but  I  assure  your 
Lordship,  I  have  given  it  no  shade  of  coloring  not  its 
own.  The  opinions  I  have  advanced  are  the  unaided  re- 
sult of  the  moment's  reflection  ;  and  although  I  may  have 
in  some  measures  misapprehended  the  letter,  or  spirit  of 
British  institutions  and  laws  ;  and  though  I  may  have  ad- 
vanced principles  not  sustained  by  the  written  authorities 
of  the  nation,  or  though  I  may  have  wandered  from  the 
path  of  strict  reasoning,  yet  if  I  have  been  correct  in  any 
one  point,  I  trust  your  Lordship  will  allow  such  argument 
to  have  its  full  force  and  effect,  and  that  your  Lordship 
will  so  consider  my  case,  as  to  direct  that  I  be  immedi- 
ately restored  to  my  liberty,  and  permitted  to  return  to 
my  own  country,  without  further  detention. 

While  I  have  urged  this,  my  appeal,  in  that  serious 
and  firm  language  which  1  deemed  most  compatible  with 
a  due  regard  to  myself,  I  have  endeavored  to  avoid  any 
expression  which  might  seem  indecorous ;  and  I  assure 
you,  my  Lord,  it  has  been  my  earnest  desire,  to  ap- 
proach ycur   Lordship   with  this  communication   in  the 


1 


96 


LETTER    TO    LORD    GLENELG. 


I: 


manner  and  with  that  respect  to  which  the  exahed  sta- 
tion and  cliaracter  of  your  Lordship  is  entitled  :  and  with 
the  hope  that  it  will  receive  the  early  and  favorable  no- 
tice of  your  Lordship, 

It  is  very  respectfully  submitted, 

For  your  Lordship's  consideration. 

TH:  J.  SUTHERLAND. 

Citadel  of  Quebec, 
Nov.  1st,   1838. 


Note.  I  arrived  at  Quebec  on  the  10th  day  of  June,  1838,  and 
was  placed  in  confinement  in  one  of  the  casemates  of  the  Citadel, 
in  company  with  Theller,  Dodge  und  seven  other  Americans  j 
where  I  remained  until  the  20th  of  August,  when  I  was  removed 
to  a  room  in  another  part  of  the  Citadel,  which  I  occupied  by 
myself.  This  was  done  by  the  officer  of  the  Coldstream  Guards, 
in  whose  immediate  custody  I  was,  on  learning  that  an  order  had 
been  sent  out  by  Her  Majesty's  Government  in  England  for  my  lib- 
eration, which  he  supposed  would  be  immediately  carried  into  ef- 
fect ;  and  as  he  informed  me,  **  because  he  was  apprehensive  that  I 
might,  if  I  was  allowed  to  remain  with  the  others,  enter  into  some 
plan  for  their  escape,  in  which  I  could  assist  them  after  my  own 
liberation." 

Previous  to  my  removal,  a  plan  had  been  formed  to  effect  an  es- 
cape— but  no  steps  had  as  yet  been  taken  to  carry  it  into  operation. 
But,  when  the  information  was  received  by  Theller  that  he  was  to 
be  sent  to  England  to  be  transported,  he  resolved,  with  the  others,  to 
make  the  attempt  to  get  away.  As  I  was  expecting  soon  to  obtain 
my  liberation  from  the  Government,  I  had  no  desire  to  attempt  an 
escape  then,  (and  I  was  more  particularly  debarred,  having  ob- 
tained a  number  of  privileges,  among  which  was  that  of  being  out 
during  the  day  time  accompanied  by  a  sergeant,  and  to  ramble 
through  the  works,  by  pledging  myself  to  Sir  James  Macdonell  not 
to  engage  in  any  such  undertaking,)  but  was  disposed  to  afi'ord 
Theller  and  the  others  every  facility  to  do  so  ;  and  for  this  cause, 
when  the  escape  was  effected,  I  had  taken  from  me  all  the  privile- 
ges I  had  before  enjoyed,  and  was  thrust  into  the  black  hole  for  Jive 
weeks ;  and  it  was  during  my  residence  in  the  black  hole  that  I  pen- 
ned the  preceding  letter.  Some  months  after,  I  was  sent  into  Up- 
per Canada,  and  there  unconditionally  released. 


ed  sta- 
nd witli 
ible  no- 


LND. 


) 


.\»- 


838,  and 
J  Citadel, 
nericans ; 
removed 
upied  by 
I  Guards, 
order  had 
or  my  lib- 
;d  into  ef- 
live  that  I 
into  some 
my  own 


APPENDIX. 


ect  an  es- 

peration. 

16  was  to 

)thers,  to 

to  obtain 

empt  an 

ring  ob- 

eing  out 

ramble 

nell  not 

o  afl'ord 

|s  cause, 

privile- 

forfivt 

1 1  pen- 

^nto  Up- 


7.,.; 


•     I        i   . 


.'- w  I 


,.:    .1 


w 


■ 


MEMBERS  OF  THE  COURT. 


Names  of  the  Officers  who  composed  the  Court  Martial  con- 
vened at  Toronto  on  the  13//t  day  of  March,  1838,  for  the 
trial  of  General  Sutherland,  xoith  their  several  additions. 

COLONEL  JARVIS,  Prksidknt, 
Membor  of  the  Provincial  Parliament  of   Upper  Canada  ;  Justice  of 
the  Peace  ;  Commissioner  of  the  Court  of  Requests  ;  Colonel   in  the 
Militia,  &c.  &c.  &c. 

COLONEL  KINGSMILL, 

Half-pay  Captain  in  the  British  army  ;  Collector  of  Customs  at  Port 
Hope  in  Upper  Canada  ;  Justice  of  the  Peace  ;  Commissioner  of  the 
Court  of  Requests  ;  Colonel  in  the  Militia,  &.c.  &c.  &c. 

LIEUTENANT  COLONEL  CARTHEvV, 

Half-pay  Lieutenant  in  the  British  army  ;  Deputy  Collector  of  Cus- 
toms at  Toronto  in  Upper  Canada  ;  Justice  of  the  Peace  ;  LieiUenant 
Colonel  in  the  Militia,  &c.  &c.  &c. 

LIEUTENANT  COLONEL  BROWN, 

Half-pay  Lieutenant  in  the  British  army  ;  Collector  of  Customs  at 
Coburg  in  Upper  Canada  ,  Justice  of  the  I'oace  ;  Major  in  the  Queen's 
Rangers  ;  Lieutenant  Colonel  in  the  Militia,  &c.  &.c.  SiC. 

MAJOR  GURNETT, 

(A  naturalized  citizen  of  the  United  States,)  Clerk  of  the  Peace  in 
the  Home  District  of  Upper  Canada  ;  Justice  of  the  Peace  ;  Commis- 
sioner of  the  Court  of  Requests  ;  Alderman  of  the  City  of  Toronto  ; 
Major  of  the  Toronto  City  Guards,  &c.  &c.  &.c. 

MAJOR  DEWSON, 
Quarter  Master  of  the  15th  Regt.  of  Foot  in  the  Britsh  army  ;  Justice 
of  the  Peace  ;  Major  in  the  Militia,  &.c.  &c.  &c. 

CAPTAIN  POWEL, 
Barrister  at  Law  ;  Mayor  of  the  City  of  Toronto  in  Upper  Canada  ; 
Justice  of  the  Peace  ;  Captain  in  the  Militia,  &c.  &c.  Sec. 

CAPTAIN  FRY. 

COLONEL  FITZ  GIBBON,  Judge  Advocate, 
Half-pay  Captain  in   the  British  army  ;  Cl«rk  of  the  Provincial  Par- 
liament of  Upper  Canada  ;  Justice  of  the  Peace  ;  Colonel  in  the  Mi- 
litia, &c.   &c.  &c. 


rtial  C071- 
,  for  the 
ditiona. 


Justice  of 
)nel   in  the 


ms  nt  Port 
loner  of  the 


or  of  Cus- 
Lieutenant 


yUBtoms  at 
le  Queen's 


Peace  in 

;  Commig- 

Toronto ; 


;  Justire 
Canada ; 


Incial  Pnr- 
lin  the  Mi- 


FIRST  DAY. 


Tuesday,  March  13,  1933. 


Pursuant  to  tlie  orders  of  Sir  F.  B.  Head,  Lieutenant 
Governor  of  the  Province  of  Upper  Canada,  a  Court  Mar- 
tial was  convened  for  the  trial  of  Thomas  Jefferson 
Sutherland,  a  citizen  of  the  United  States  of  America, 
(late  Brigadier  General  in  the  Patriot  army  of  Upper 
Canada,)  at  the  Garrison,  near  Toronto,  on  the  13th  day 
of  March,  A.  D.  1838.  At  ten  o'clock  in  the  forenoon  of 
that  day,  the  Prisoner,  General  Sutherland,  was  brought 
before  the  Court,  and  the  Charge  upon  which  he  was  to  be 
tried,  with  the  several  orders  for  the  couvening  of  the 
Court,  were  then  read  by  the  Judge  Advocate.  This  be- 
ing done,  and  the  Judge  Advocate  having  furnished  the 
Prisoner  with  a  copy  of  the  Charge,  and  of  the  law 
under  which  it  was  drawn  up,  and  with  a  copy  of  the 
Militia  laws  of  the  Province,  by  the  provisions  of  which 
the  Court  Martial  was  said  to  have  been  organized,  the 
President  adjourned  the  Court  till  10  o'clock  A.  M.  of  the 
next  day. 

[I  arrived  in  Toronto  about  mid-day  on  the  12th  of 
March,  and  having  been  selected  by  Sir  F.  B.  Head  and 
his  Executive  Council  as  the  first  to  be  made  a  sacrifice,  it 
was  at  ten  o'clock  on  the  morning  of  the  next  day  that  I 
was  arraigned  before  the  Court  Martial,  to  be  prepared 
for  the  scaffold  which  v/as  then  yawning  for  its  victim.] 


.{ ) 


SECOND  DAY. 

Wednesday,  March  14,  1838. 


The  Court  met  pursuant  to  adjournment.     Present  the 
same  members  as  before.     After  some  proceedings  which 


100 


PRELIMINARY  PROCEEDINGS    OF 


were  merely  preliminary  had  been  nrone  tiirongh  with, 
the  President  adjourned  the  Court  till  10  o'clock  A.  M. 
of  the  16th  day  of  the  same  month. 


THIRD  DAY. 


Friday,  March  16,  1838. 


The  Court  met  pursuant  to  adjournment.  Present  the 
same  members  as  before.  Without  proceeding'  with  thi 
the  trial,  the  President  adjourned  the  Court  till  10  oclock 
A.  M.  of  the  19th  day  of  the  same  month. 


FOURTH  DAY. 


I    . 


Monday,  March  19,  )83S. 


The  Covrt  met  pursuant  to  adjournment.  Present  the 
same  members  as  before.  Upon  the  opening  of  the  Court, 
the  Prisoner,  General  Sutherland,  was  brought  before  it, 
and  asked  by  the  Judge  Advocate,  "if  he  had  any  objec- 
tions to  make  to  any  of  the  members  of  the  Court?" 

The  following  objections  were  then  delivered  to  the 
Court,  in  writing,  by  General  Sutherland, 

1st.  I  object  that  Major  Dewson,  who  has  taken  his 
seat  as  a  member  of  this  court,  is  an  officer,  on  full  pay, 
in  the  regular  forces  of  Her  Majesty;  and  that  he  is,  there- 
fore, incompetent  to  sit  on  this  Court  Martial,  which  the 
laws  require  to  be  composed  exclusively  of  Militia  Officers. 

2d.  I  object  that  the  President  of  this  Court  has  never 
before  sat  on  a  Court  Martial. 

2d.  I  object  that  one  half  of  the  members  of  this  Court 
have  not  before  sat  on  a  Court  Martial. 

The  Court  was  then  cleared,  and  on  its  being  again 
opened,  and  the  prisoner  brought  in,  he  was  informed  by 


THE    COURT    MARTIAL. 


101 


^h  witli, 
k  A.  M. 


sent  the 
kvith  the 
0  oclocK- 


sent  the 
e  Court, 
)efore  it, 
V  objec- 
tt?" 
to  the 

ken  his 
uU  pay, 
,  there- 
lich  the 
Officers. 
IS  never 

[s  Court 


g  again 
med  bv 


the  Judgo  Advocato  that  the  Court  had  decided  that  hij 
objections  were  not  well  taken. 

The  prisoner,  General  Sutherland,  then  delivered  to 
tlie  Court,  in  writing,  several  otlier  objections  to  its  consti- 
tution ;  which  were  alike  ruled  against  by  the  Court  ; 
and  it  also  refused  to  enter  them  on  the  niinutes.  The 
members  who  had  first  taken  their  seat  were  then  all 
sworn. 

[Notwithstanding  a  number  of  the  officers  composing 
the  board  had  served  in  the  British  regular  army,  in  the 
proceedings  of  this  Court  Martial,  there  was  but  a  little 
observance  of  the  established  rules  and  practice  of  such 
tribunals.  In  taking  their  places,  the  President  was  seat- 
ed at  the  head  of  the  board,  with  the  Judge  Advocate  im- 
mediately on  his  right,  seated  as  one  of  the  members  of 
the  board,  and  indeed  acting  as  such.  This  should  not 
have  been.  By  the  rules  ana  practice  of  Courts  Martial 
in  the  British  army,  in  the  formation  of  a  board  of  Court 
Martial,  the  President  is  seated  at  the  head  of  the  table. 
Immediately  on  the  right  of  the  President  is  placed  the 
member  highest  in  rank.  The  next  in  rank  on  the  left  ; 
and  so  on,  right  and  left,  alternately,  according  to  rank, 
until  they  are  all  placed.  The  Judge  Advocate  has  his 
seat  at  a  separate  table,  on  the  left  of  the  President  ;  and 
the  accused  is  similarly  placed  on  the  right.  While  im- 
prisoned in  the  Citadel  of  Quebec,  I  was  present  at  a 
number  of  Courts  Martial,  convened  at  that  place  of  offi- 
cers of  the  British  regular  army,  and  I  observed  that  such 
was  their  order  of  arrangement.  On  my  trial  I  was  fur- 
nished a  table  and  a  seat  on  the  left  of  the  President  of 
the  Court.  In  taking  a  vote,  the  Court  Martial  by  which 
I  was  tried  proceeded  without  any  order,  commencing  by 
taking  the  vote  of  one  member  at  one  time,  and  that  of 
another,  at  another  time.  By  the  established  practice  of 
Courts  Martial  in  the  British  army,  the  vole  of  the  offi- 
cer  lowest  in  rank  on  the  board  is  taken  first ;  and  then 
that  of  his  next  superior,  and  so  on,  up  to  the  President, 
who  is  not  required  to  give  his  vote,  unless  there  be  a  tie 
of  the  members'.  This  practice  has  been  founded  upon 
the  supposed  influence  that  an  old  and  experienced  officer 
might  have  over  a  subordinate,  who  mav  be  a  youth  of 

9* 


102 


PRELIMINARY    PROCEEDINGS    OF 


inexjUTioncc ;  and  it  is  adhered  to  in  order  to  prevent  tlio 
vole  of  the  one  controlling  the  oilier.  The  principle  up- 
on ^vhich  this  practice  is  founded,  is  carried  sslill  further 
in  the  practice  of  Courts  Martial  in  the  French  aruiy. — 
There,  a  vote  is  taken  hy  deliverinj^  a  sheet  of  ])aper  to 
the  junior  ullicer  of  the  hoard,  who  writes  on  it  his  vole. 
and  then  folding  over  the  pa])er  so  as  to  cover  it  from 
view,  liands  the  sheet  to  the  next  superior  in  ranlc,  who 
does  the  like,  and  hands  it  to  his  next  suj)erior;  and  thus  tlu' 
paper  is  passed  from  member  to  member,  until  it  arrives 
to  the  hand  of  the  President,  who  unfolds  it  and  declan  > 
the  result.  I  was  required  on  my  trial,  to  reduce  tlu- 
questions  I  propounded  on  the  cross-examination  of  wit- 
nesses, to  writing,  hefore  ihey  would  be  accepted  and  con- 
sidered by  tlie  Court.  This  requirement  was  in  accord- 
ance with  the  rules  and  practice  of  Courts  Martial ;  and 
may  be  regarded  as  proper  hi  order  to  prevent  confusion. 
On  the  trial  of  officers  this  rule  is  generally  adhered  to: 
and  when  a  common  soldier  is  on  trial,  the  Judge  Advo- 
cate usually  reduces  his  questions  to  writing  for  him.  It 
is  also  the  practice  of  Courts  Martial  to  allow  no  indivi- 
duals to  be  examined  as  witnesses  who  have  been  present 
during  the  examination  of  a  previous  witness  on  the  sanif 
trial.  To  enable  the  Court  to  preserve  this  rule,  and  in 
order  to  put  the  accused  in  possession  of  a  perfect  knowl- 
edge of  the  character  of  the  testimony  which  is  to  be  ad- 
duced against  him,  it  has  been  established  as  a  rule,  that 
the  Judge  Advocate  shall,  on  delivering  a  copy  of  the 
charge  to  the  accused,  furnish  him  with  the  names  of  the 
persons  whom  he  intends  to  .idduce  as  witnesses;  and 
none  but  those  whose  names  have  been  furnished  to  the 
accused  will  be  allowed  to  be  examined.  The  accused 
is  also  required,  at  the  opening  of  the  Court  on  the  first 
day,  to  furnish  to  the  President  the  names  of  his  witnesses, 
that  they  maybe  excluded  during  the  examination  of  oth- 
er witnesses,  or  to  take  care  himself  that  none  of  them 
are  present ;  for  the  Court  will  not  permit  him  to  call  and 
examine  any  who  have  been  present  at  the  examination 
of  others.  So  far  as  this  rule  became  applicable  on  my 
trial,  it  was  adhered  to.  For  the  trial  of  officers  and  sol- 
diers of  the  military  forces  of  any  country,  a  Court  Mav- 


tia 

cr 

tliu 

iiisl 

of 

is 

Ma 

fore 


THE   COUKT   iMAilTlAL. 


103 


revcnt  the 
iciplo  up- 
ill  furtlier 
I  army. — 
])aper  to 
t  liis  vole. 
it  il  Iroiii 
•aniv,  wlio 
1(1  thus  tht' 
i  it  arrive.^ 
(!  (lcclar<^ 
•{.'duce  tlif 
on  of  wii- 
}(l  and  con- 
in  accord- 
irtial ;  ami 
confusion, 
dhercd  to; 
dim  Ad  vo- 
ir him.     It 
no   indivi- 
icn  present 
n  the  sann 
lie,  and  in 
ect  knowl- 
3  to  be  ad- 
rule,  that 
py  of  the 
nes  of  the 
ssesj  and 
ed  to   the 
e  accused 
n  the  first 
witnesses, 
lion  of  oth- 
|e  of  them 
Ito  call  and 
amination 
le  on  my 
s  and  sol- 
outt  Mav- 


tial  constituted  of  ofTlcorsof  the  same  forces,  has  strong- 
er guards  against  oppression  and  unjust  condemnation, 
than  tlio  trihunals  of  the  civil  law.     A  Court  Martial    is 
instituted,  in  every  case,  for  an  incjuiry  and  adjudiiation 
of  sj)ecific  nuitters  ;  and  when  that  is  done,  tiu;  trihunal 
is  at  an  end.     The  officer  who  is   a  member  of  a    Court 
Martial  to-day,  to-morrow  may  l)e  arraif,nied  himself  he- 
fore  a  similar  Court,  of  which  the  oth^er  on  whose  con- 
duct he  may  have  just  passed,  mi^jht  ho  a  member.     For 
this  reason  it  is  not  to  be  supposed  that  any  officer  would 
be  likely  to  vote  for  the  application  of  a  principle,  or  rule 
of  practice  he  would  not  be  willing  to  have  applied    to 
himself.     The   common   soldier,  in  a  certnin    sense,    is 
the  tool  with  which  the  officer  operates;  the    stock    on 
which  he  speculates  for  military  fame  and  glory.     Hence 
if  the  common  soldier  b^  put  on  trial,  though  he  is    not 
tried  by  his  peers,  the  interest  which  evory  officer   wi\ 
feel  in  his  preservation,  must  necessarily  render  him  se- 
cure from  oppression  and  wrong.     But,    when  a  Court 
Martial  is  resorted  to  for  the  trial  of  a  stranger  or  foreign- 
er, it  is  without  these  guards  to  protect  him  ;  and   he    is 
left  open  to  the  greatest  violence  and  wrong.] 

The  President  then  asked  the  prisoner,  General  Suth- 
erland, whether  he  said  guilty  or  not  g^dltij  to  the  Charge  ? 
and  he  answered,  "not  guilty." 


REPORT  OF  THE  TESTIMONY. 


John  Prince,  (1.)  Lieutenant  Colonel  in  the  Militia  of 
the  Province  of  Upper  Canada,  being  duly  sworn  on  the 
holy  Evangelists,  states  to  the  Court : 

That  on  the  fourth  day  of  March,  instant,  he  was  re- 

(1.)  This  John  Prince,  who  has  become  of  late  somewhat  noto- 
rious on  this  continent  83  the  violator  of  ihe  rules  ol"  civilization 
and  the  common  ri^rhts  uf  man,  is  said  to  be  a  native  of  England. 
He  was  born,  some  iorty-five  or  iifty  years  since,  at  Quedgley  Green, 
in  the  county  of  Gloucester.  At  an  early  age  he  was  apprenticed 
to  an  Attorney,  and  upon  being  admitted  to  the  bar,  commenced 
practice  as  an  Attorney  at  Cheltenham,  with  one  Stafford  as  a  part- 
ner. Subsequently,  Prince  procured  himself  to  be  appointed  Clerk 
to  the  Commissioners  of  Roads.  By  means  of  this  olfice,ns  it  is  said, 
he  got  into  his  possession  two  or  three  thousand  pounds  of  the  pub- 
lic funds,  with  which  he  decamped,  and  came  to  the  United  States. 
He  first  landed  upon  our  shores  at  the  city  of  New.York  ;  and  from 
thence  he  pursued  his  way  into  the  interior  until  he  arrived  at  De- 
troit, in  Michigan,  where  he  put  himself  down,  with  a  view  of  ma- 
king that  place  his  permanent  residence,  and  embarked  in  the  busi- 
ness of  smuggling.  But  apprehending  that  he  might  be  looked  af- 
ter by  the  Commissioners  of  Roads,  whose  coffers  he  had  defraud- 
ed, and  observing  the  ready  intercourse  and  communication  which 
existed  between  the  city  of  New-York  and  Detroit,  he  deemed  him- 
self unsafe  at  the  last  mentioned  place ;  and  left  that,  and  crossed 
over  to  the  Upper  Canada  shore,  and  stowed  himself  away  on  a 
piece  of  land  in  the  wilderness  of  the  Western  District  of  that  Pro- 
vince. There  he  remained  safe  and  secure  for  a  number  of  years, 
engaging  himself  principally  in  smuggling;  for  which  his  natural 
disposition  for  duplicity  and  scheming  peculiarly  fitted  him.  Sub- 
sequently becoming  acquainted  v/ith  a  lady  residing  in  the  part  of 
the  Province  where  he  was  located,  who  was  in  possession  of  a  con- 
siderable amount  of  money  and  property,  but  no  character,  having  lost 
her  claim  to  the  latter,  by  certain  derelictions  from  the  principles  and 
rules  of  chastity;  to  her  he  married,  and  by  adding  her  effects  to 
his  plunder,  he  was  enabled  to  go  back  to  England  and  make  a  com- 
promise with  thedefraudeu  Commissioners  of  Roads,  and  still  hold 
the  possession  of  a  considerable  amount  of  property.  Upon  his  first 
arrival  at  Detroit,  and  during  his  early  residence  in  Upper  Canada, 
Prince  professed  himself  a  Democrat  in  principle  ;  and  in  Canada 
he  adhered  to  the  Radical  Reform  party.  Soon  after  he  had  effect- 
ed  a  compromise  with  the  Commissioners  of  Roads  in  England,  he 
put  himself  up  as  a  candidate  for  a  seat  in  the  Provincial  Parlia- 
ment of  Upper  Canada,  to  represent  a  county  of  the  Western  Dis- 
trict, and  by  the    votos  of  the  Radical  Reformers  obtained  an  elec- 


TESTIMONY    OF    LT.    COL.    PRINCE. 


105 


Y. 

yiilitia  of 
n  on  the 

!  was  re- 

what  noto- 
nvilization 
r  England. 
;ley  Green, 
pprenticed 
ommenced 
I  ns  a  part- 
nled  Clerk 
is  it  is  said, 
of  the  pub- 
ited  States. 
;  and  from 
ived  at  De- 
iew  of  ma- 
in the  busi- 
;  looked  af- 
[id  defraud- 
tion  which 
emed  him- 
id  Crossed 
iway  on  a 
'  that  Pro- 
r  of  years, 
lis  natural 
lim.     Sub- 
he  part  of 
1  of  a  con- 
laving  lost 
ciples  and 
effects  to 
ike  a  com- 
still  hold 
in  his  first 
|r  Canada, 
Canada 
ad  effect- 
igland,  he 
1  Parlia- 
tern  Dis- 
an  flee- 


turning  from  Gosfield,  in  the  Western  District — was  tra- 
velling in  a  sleigh  along  the  shores  of  Lake  Erie  on  the 
Canada  side,  and  at  about  half  past  four  o'clock,  P.  M.  he 
saw  at  a  great  distance  two  objects  on  the  ice,  which  he 
thought  were  men — that  he  was  in  company  with  Captain 
Girty  and  Mr.  Haggerty ;  and  they  had  been  with  him  on 
Pele  Island  on  the  proceeding  day,  with  the  forces  under 
the  command  of  Colonel  Maitland — that  in  abcjt  tv)enty 
minutes  after  he  had  seen  the  objects,  he  saw  that  they 
were  men  coming  from  the  Michigan  shore  towards  the 
Canada  shore — that  he  conceived  them  to  be  spies,  and 
determined  to  intercept  them  if  possible — that  having  met 
some  people  who  accommodated  him  and  Mr.  Haggerty 
with  fresh  horses  and  sleighs,  (2.)  Mr.  Haggerty  got   into 

tion.  Immediately  after  taking  his  seat  in  the  Provincial  Parlia- 
ment, however,  he  abandoned  his  reform  principles,  and  joined  the 
ultra  loyal  party  who  sustained  the  measures  of  Sir  F.  B.  Head ; 
and  upon  the  first  movements  of  the  Revolution  which  took  place  in 
that  Province,  in  1837,  he  was  found  among  the  most  active  of  the 
supporters  of  the  British  Colonial  authorities.  To  enable  him  effi- 
ciently to  act  in  such  i-jspect.  Sir  F.  B.  Head  commissioned  him  as 
a  Justice  of  the  Peace,  and  as  a  Lieutenant  Colonel  in  the  Militia 
of  the  Province. 

Upon  the  convocation  of  the  Provincial  Parliament  of  Upper 
Canada,  in  J837,  by  Sir  F.  B.  Head,  Prince  took  his  seat,  and  during 
that  memorable  session,  procured  a  law  to  be  passed,  authorizing 
him  to  practice  as  an  Attorney,  Solicitor  and  Barrister,  in  the  seve- 
ral courts  of  law  and  equity  of  the  Province. 

The  residue  of  the  history  of  this  man  is  too  well  known  to  need 
recounting  in  this  note. 

(2.)  On  the  morning  of  the  4th  of  March,  1838, 1  had  proceeded 
from  Detroit  down  to  Gibralter,  a  small  village  or  landing  pla^e, 
situated  at  the  head  of  Lake  Erie,  nearly  opposite  to  Amherstburgh 
in  Upper  Canada,  and  at  the  distance  of  18  or  20  miles  from  De- 
troit. My  intention  had  been,  on  setting  out  from  Detroit,  to  pro- 
ceed to  Sandusky  in  Ohio,  by  the  way  of  Gibralter,  Monroe  and 
Perrysburgh,  in  order  to  make  an  effort  to  recover  property  of  which 
I  had  been  robbed,  and  to  meet  those  who  had  been  guilty  of  the 
robbery,  who  I  had  been  informed  had  gone  to  Sandusky  by  that  route. 
But,  at  Gibralter,  I  was  advised  not  to  go  on  by  the  way  of  Perrys- 
burgh ;  and  in  accordance  with  the  advice  I  had  received,  I  changed 
my  intention,  and  resolved  to  proceed  across  the  ice,  which  then  co- 
vered the  waters  at  the  head  of  Lake  Erie,  on  a  right  line  to  San- 
dusky, whereby  I  could  hav^  gained  Sandusky  in  travelling  a  dis- 
tance of  only  about  one-third  of  that  by  the  way  of  Perrysburgh  ;  and 
in  advance  of  the  persons  of  whom  I  was  then  in  pursuit.  The 
roads  were  most  intolerably  bad,  and  this  was  one  of  the  facts  which 


106 


TESTIMONY    OF    LT.    COL.    PRINCE. 


one  of  the  sleighs  and  witness  into  the  other — that  he  had 
previously  prevailed  on  Captain  Girty,  who  was   unwell 

recommended  to  me  the  measure  of  crossing  upon  the  ice,  which  I 
Tvas  at  the  time  informed  I  could  do  only  on  foot,  as  the  ice  was 
known  lo  have  been  broken  and  separated  at  the  head  of  Lake  Erie, 
on  a  line  from  Point  Mouillee  in  Michigan  to  Hartly's  Point  in  Up- 
per Canada ;  and  this  would  prevent  the  crossing  of  teams,  as  it  was 
supposed,  though  it  allowed  travellers  on  foot  to  get  over.  At  about 
15  minutes  before  J2  M.,  I  set  out  on  foot  from  Gibralter,  accompa- 
nied only  by  a  single  individual,  (a  lad  some  sixteen  or  seventeen 
years  of  age,)  and  proceeded  on  the  ice  down  along  the  shore  of 
Michigan,  until  I  arrived  at  the  place  where  the  ice  had  been  bro- 
ken and  separated,  (which  was  in  the  neighborhood  of  Point 
Mouillee,)  but,  there  I  found  that  an  east  wind  had  closed  it  again  so 
as  to  render  it  not  only  convenient  for  persons  on  foot,  but  also  for 
teams,  to  get  over.  From  thence  I  travelled  in  a  sou'h-easterly  dirtC' 
Hon,  (that  being  the  course  for  Sandusky,)  and  had  gained  the  dis- 
tance of  four  or  five  miles  below  the  fracture  in  the  ice,  (which  had 
brought  me  very  near  a  schooner,  that  was  there  frozen  in  the  ice, 
and  in  the  neighborhood  of  the  Island  called  the  West  Sister,  which 
was  then  fairly  within  my  view,)  when  on  turning  my  eyes  to  the 
rear,  I  perceived  two  objects  on  the  ice  which  I  conceived  to  be  in- 
dividuals travelling  on  foot  in  the  same  direction  I  was  then  pursu- 
ing. After  they  had  crossed  the  fracture  in  the  ice,  however,  and 
had  come  on  some  distance  towards  me,  I  discovered  that  the  ob- 
jects I  had  before  noticed,  were  not  single  individuals  on  foot,  but 
two  sleighs,  and  that  they  were  followed  by  a  third,  close  in  the 
rear.  But,  as  I  had  observed  that  they  were  pursuing  the  same 
route  travelled  by  myself,  I  did  not  suspect  that  they  intended  harm 
to  me,  nor  was  I  so  advised  until  the  two  sleighs  in  advance  had 
come  up  to  within  about  fifty  yards,  and  a  number  of  men  they  con- 
tained, armed  with  muskets,  swords  and  pistols,  got  out  and  com- 
manded me  to  halt  J  and  their  leader,  who  was  this  John  Prince, 
declared  me  to  be  a  prisoner. 

I  had  no  means  of  conceiving,  nor  did  I  ascertain  why  I  had  been 
thus  pursued  and  captured,  until  after  my  trial  at  Toronto.  Subse- 
quent to  the  trial,  and  while  I  was  being  conveyed  as  a  prisoner 
from  Toronto  to  Kingston  on  board  a  steamer,  I  became  acquainted 
with  a  Lieutenant  of  Her  Majesty's  service,  who  informed  me  that 
he  was  on  duty  at  Amherstburgh  at  the  time  of  my  capture  ;  and  he 
stated  to  me  "  that  immediately  after  my  setting  out  from  Gibralter, 
an  individual  who  had  acted  as  a  spy  for  them,  came  over  from 
Gibralter  to  Maiden,  and  made  it  known  to  Colonel  Maitland,who 
commanded  at  that  post,  that  I  wns  travelling  on  the  ice  towards 
Sandusky  in  Ohio,  and  that  being  on  foot  I  might  be  readily  pur- 
sued and  taken  by  a  party  in  sleighs ;  that  Colonel  1^'aitland  de- 
clined sending  a  party  from  Maiden  for  the  object  suggested,  but 
directed  the  individual  makins  the  communication,  to  proceed  down 
along  the  Canada  shore,  where  he  would  be  likely  to  meet  some  of 
the  parties  coming  up  from  Pele  Island,  (where  the  British  forces 


It  he  had 
unwell 

?,  which  I 
e  ice  was 
Lake  Erie, 
int  in  Up- 
s,  as  it  was 
At  about 
,  accompa- 
seventeen 
;  shore  of 
[  been  bro- 
of  Point 
it  again  so 
ut  also  for 
terly  dine- 
ed  the  dis> 
which  had 
in  the  ice, 
iter,  which 
yes  to  the 
jd  to  be  in- 
hen  pursu- 
jvever,  and 
tiat  the  ob- 
n  foot,  but 
lose  in  the 
the  same 
ded  harm 
Ivance  had 
they  con- 
and  com- 
n  Prince, 

had  been 
.    Subsc- 
prisoner 
[cquainted 
me  that 
l-e ;  and  he 
iGibralter, 
pver  from 
|and,who 
towards 
Hly  pur- 
litland  de- 
psted,  but 
;ed  down 
;  some  of 
Ih  forces 


TESTIMONY    OF    LT.    COL.    PRINCE. 


107 


and  his  horses  tired,  to  remain  where  he  was  (3.)- — that 
they  drove  on,  witness  first,  Haggerty  next — that  when 
witness  came  within  about  a  hundred  yards  of  the  pris- 
oner, who  had  another  person  with  him  of  the  name  of 

,  he  desired  the  man  who  drove  him  to  stop  and 

take  charge  of  his,  witness's  pistols — that  he  left  in  the 
sleigh  a  tomahawk  which  he  had,  and  advanced  towards 
the  prisoner,  following  them  and  having  his  gun — that  he 
desired  Mr.  Haggerty  to  follow  with  his  gun  also — that 
he  was  about  fifty  yards  ahead  of  ]V!Ir.  Haggerty  when 
he  hailed  i!ie  prisoner  and  his  companion,  and  desired 
them  to  halt — that  they  did  so,  and  the  prisoner  asked, 
^^  luhat  do  you  want  ?"  and  said,  "  we  are  American  citi' 
zens  going  about  our  own  business^^ — that  as  witness  ad- 
vanced, he  recognized  the  prisoner — that  he  then  said 
they  were  some  of  the  people  he  had  been  looking  for^  or 
words  to  that  effect — that  on  their  turning  round  he  dis- 
covered that  they  had  swords,  and  he  advanced  towards 
prisoner  and  took  his  sword  from  him — that  witness  then 
desired  Mr.  Haggerty  to  demand  the  sword  of  the  prison- 
er's companion — that  Mr.  Haggerty  did  demand  it,  and  it 
was  given  to  him  (4.) — that  witness  then  demanded  of 

had  been  engaged  with  the  Patriots  the  day  before,)  to  whom  he 
could  make  the  facts  he  had  communicated  known,  and  that  they 
might  act  upon  them  ;  that  the  individual  did  so,  and  fell  in  with 
Colonel  Prince,  who  fitted  out  the  expedition  by  which  I  was  pur- 
sued and  captured."  The  party  by  which  I  was  taken  and  carried 
off  to  Canada  consisted  of  Colonel  Prince,  Major  Rudyard,  Captain 
Girty,  Lieutenant  James,  and  Lieutenant  Wright,  together  with 
some  twelve  or  fifteen  soldiers,  constituting  as  many  persons  as 
could  be  crowded  into  three  sleighs. 

(3.)  Girty  did  not  remain  very  far  behind  in  the  pursuit,  as  it 
will  be  perceived  by  an  examination  of  the  report  of  his  testi- 
mony, but  proceeded  on  after  me  as  fast  as  his  horses  could 
draw  his  sleigh,  then  loaded  with  armed  persons,  while  Prince,  with 
\\\i  fresh  teams,  had  taken  the  lead.  On  leaving  the  Canada  shore, 
as  I  was  informed  by  Girty  and  some  others  of  the  party,  they 
drove  directly  towards  the  shore  of  Michigan,  with  the  hope  of  tak- 
ing me  before  I  could  have  got  down  to  the  fracture  in  ."le  ice 
near  Point  Mouillee ;  but  when  they  had  arrived  near  the  Michi- 
gan shore,  they  discovered  that  I  had  crossed  the  fracture  in  the 
ice,  and  gone  off  in  a  south-easterly  direction,  a.id  they,  accordingly 
changed  their  course  to  the  same  direction  and  pursued  until  they 
came  up  with  me. 

(4.)  After  resigning  my  command  with  the  Canadian  Patriots  I 


108 


TESTIMONY    OF    LT.    COL.    PRINCE. 


both  if  they  had  any  fire-arms  about  them — that  they  as- 
sured him  that  they  had  not,  tohen  witness  said  he  would 
he  satisfied  with  that  assurance,  and  would  not  search  them 
— that  he  told  them  to  consider  themselves  as  his  prison- 
ers, and  to  march  before  him  to  the  sleighs  which  were 
at  some  distance  (5.) — that  Mr.  Sutherland  then  charged 
the  witness  with  having  taken  him  within  the  American 
waters — that  witness  told  him  to  look  at  our  shore,  and  at 
the  American  shore  from  whence  he  came,  and  he  told 
him  to  bear  in  mind  that  they  were  about  a  mile  and  a  half 
from  the  Canada  shore,  while  they  were  about^re  or  six 
miles  from  the  Michigan  shore  (6.) — that  the  prisoner  then 

had  packed  up  my  arms  and  field  equippagC;  and  left  them  at  Tole- 
do in  Ohio  j  and  I  had  kept  no  kind  of  arms  in  my  possession  ex- 
cept a  brace  of  pocket  pistols  which  belonged  to  a  friend  who  re- 
sided in  Detroit.  These  I  returned  to  the  owner,  while  there,  and 
left  Detroit  on  the  morning  of  the  4th  of  March,  with  no  kind  of 
weapons  for  offence  or  defence.  At  a  public  house  near  Gibralter, 
I  was  shown  a  couple  of  swords  which  were  my  property,  and  which 
had  been  left  there  by  me,  at  a  time  previous,  on  account  of  their 
futility  as  weapons  for  the  field.  But,  as  the  swords  were  of  use 
to  ornament  a  militia  oflicer,  and  might  be  sold  for  some  amount 
of  money,  the  lad  whom  I  had  in  company  proposed  that  we  should 
take  them  along — to  which  I  consented;  and  one  of  these 
swords,  which  I  carried  in  my  hand,  was  all  the  weapon  I  possess- 
ed when  come  upon  by  Prince  and  his  party.  The  lad  who  accom- 
panied me  carried  the  other  in  his  hand,  which  was  taken  from  him 
in  the  manner  as  testified  to  by  Prince,  (by  one  of  his  party,  whose 
name  I  presume  was  Haggerty,)  but  not  until  the  third  sleigh  had 
come  up,  and  we  had  gone  back  to  the  sleigh  which  stood  in  the 
center,  into  which  we  were  ordered  to  place  ourselves.  After  the 
the  sword  had  been  taken  away  from  my  companion,  I  produced  the 
one  I  carried  from  under  my  cloak,  and  asked  the  man  "  if  he 
wished  it  1"  He  replied — ^"  Yes,"  and  I  gave  it  to  him.  Prince,  at 
the  time,  was  at  the  advance  sleigh,  and  did  not  know  that  I  had 
a  sword  in  my  possession  until  I  had  given  it  to  his  man.  £o,  ht 
did  not  take  my  sword  from  me. 

(5.)  On  coming  up  with  myself  and  companion,  Prin^j  and  his 
party  readily  perceived  that  we  had  no  arms,  other  than  such  as 
might  be  worn  by  our  sides  or  carried  in  our  pockets.  They  iiere 
armed  with  muskets.  Prince  did  not  allow  myself  or  companion  to 
come  nearer  than  forty  or  fifty  yards  of  him,  before  the  third  sleigh 
with  Girty,  had  come  up  ;  thus  keeping  himself  safe  from  harm, 
by  sword  or  pistol,  until  we  were  surrounded  by  a  body  of  men 
armed  with  muskets.  It  was  then,  that  it  was  proposed  by  some  of 
Prince's  party  to  search  us,  when  Prince  said, ''  that  it  was  not  ne- 
cessary." 

(6.)  See  notes  to  the  answers  of  Prince  to  the  I8th,  19th  and  23d 


sta 

ter 

(Ic. 

oil'i 

use 

be 

be 

ima 


TESTIMONY    OF    LT.    COL.    PRINCE. 


109 


ihcij  as- 
,e  would 
rck  them 
s  prison- 
ich  were 

charged 
American 
e,  and  at 
.  he  told 
ind  a  half 
five  or  six 
loner  then 

;m  at  Toie- 
isession  ex- 
sad  who  re- 
J  there,  and 
no  kind  of 
r  Gibralter, 
,  and  which 
ant  of  their 
were  of  use 
me  amount 
it  we  should 
of    these 
I  possess- 
ho  accom- 
in  from  him 
.rty,  whose 
sleigh  had 
ftood  in  the 
After  the 
oduced  the 
lan  "if  he 
Prince,  at 
that  I  had 
in.     So,  ht 

_  and  his 
Ian  such  as 
\They  t;ere 
apanion  to 
liird  sleigh 
rom  harm, 
By  of  men 
W  some  of 
^as  not  ne- 

th  and  23d 


stated  that  ho  thought  he  had  a  right  over  any  of  the  wa- 
ters of  Lake  Erie,  or  words  to  that  effect — that  he  then 
desired  the  witness  to  take  him  before  his    commanding 
ofFicer,  and  he  expressed  a  hope  that  he  would  not  be    ill 
used    by  them    (7.) — that    witness    told   him    he  should 
be  taken  before  the  commanding  officer,  and  should  not 
be  ill  treated — that  witness  loished  the  Court  distinctly  to 
undcrstarid  that  the  place  ivhere  he  captured  the  Prisoner^ 
was  not  above  a  mile  and  a  half  from  the  Ca?iada  shore, 
and  it  was  on  that  part  of  Lake  Eric  which  belongs  to  the 
British  government — that  he  also  wishes  the  Court  dis- 
tinctly to  understaiid  that  it  was  at  least  five  miles  from 
ike  Aniericarz  shore — that  witness   also  wishes   the  Court 
to  understand    that  the  swords   loere  both   very   efficient 
bioords,  (8.)  and  they  wore  them  as  military  men  usually 
do — that   witness   had  seen  Mr.  Sutherland    at   Detroit 
some  time  previous  to  that  day,  about  six  weeks  previous, 
and  a  few  days  after  the  capture  of  the  schooner  Ann  of 
Detroit — that  he  had  then  a  sword  by   his  side,  wViich 
witness  believes  to  be  the  same  which  he  took  from  him 
(9.) — that  he  also  wore  a  military  dress  with  a   tri-colored 

questions  upon  his  cross-examination,  and  1st  note  to  the  ansxver  of 
Girty  to  questions  by  the  Court. 

(7.)  Having  captured  me,  and  taken  me  towards  and  within  a 
mile  of  the  Upper  Canada  shore,  it  was  then  proposed  by  some  of 
the  party  that  I  should  be  executed  there  upon  the  ice,  by  being 
shot.  Hearing  this  proposition,  I  remarked  to  the  officers, "  that  I 
had  supposed  them  to  be  civilized  people" — and  told  Prince  "  that 
lor  his  own  credit  and  the  reputation  of  the  people  of  his  coun- 
try, I  hoped  he  would  not  allow  me  to  be  murdered,  and  ask- 
ed him  to  preserve  me  from  harm  until  I  should  be  taken  before  his 
commanding  officer.  Some  conference  was  then  had  between  Prince 
and  his  officers ;  after  which  he  told  me  "  that  I  should  not  be  ill 
treated,  and  that  he  would  take  me  immediately  to  his  commanding 
officer  at  Fort  Maiden."  I  was  since  informed  by  an  individual 
who  was  of  Prince's  party,  "  that  two  of  the  officers  were  for 
shooting  me  upon  the  ice,  but  that  the  three  others  were  opposed 
to  the  measure  and  prevented  it — and  that  Prince  was  not  num- 
bered with  the  three." 

(8.)  The  swords  were  French  rapiers;  but  were  never  worn  by 
cither  myself  or  companion.  I  could  not  have  worn  the  one  I  car- 
ried, if  I  had  desired,  for  the  reason  that  the  belt  attached  to  it  was 
not  sufficient  to  girt  my  waist 

(9.)  The  sword  which  I  hud  in  my  possession  at  the  time  of  my 
capture,  was  never  worn  by  me  in   the  city  of  Detroit.    Neither 

10 


V 


no 


TESTIMONY    OF    LT.    COL.    PRINCE. 


Pi 


cockade  on  his  hat — that  after  Mr.  Sutherland  became  the 
witness's  Prisoner,  they  proceeded  in  sleighs  to  Maiden, 
where  witness  placed  him  in  charge  of  the  Honorable  Co- 
lonel Maitland,  then  commanding  there. 

That  on  the  following  day,  being  Monday,  and  Col. 
Maitland  havmg  expressed  his  determination  to  send  both 
the  Prisoners  down  to  Toronto;  and  Mr.  Sutherland  hav- 
ing the  preceding  day  expressed  a  wish  to  make  a  com- 
munication to  them  ;  (10.)  witness  arranged  with  Colonel 

Prince,  nor  any  other  person  ever  saw  me  at  Detroit  with  a  sword 
by  my  side.  Though  i  did  there  wear  a  military  undress  and  a 
tri-colored  cockade.  [I  objected  to  Prince's  testifying  to  any  mat- 
ters which  had  occurred  within  the  United  States — but  my  objec- 
tions were  overruled  by  the  court.] 

(10.)  I  never  expressed  to  any  one  a  wish  to  make  a  communica- 
tion to  Prince,  Lachlan,  Girty,  or  any  other  person.  Immediately 
after  my  capture  I  was  taken  to  Fort  Maiden  and  placed  in  rhe 
guard-room,  where  I  remained  a  short  time,  and  was  then  taken  to 
ihe  officers'  guard-room,  before  Colonel  Maitland,  who  was  the  mili- 
tary commandant  cf  the  post.  A  number  of  other  officers  Avere 
present,  by  two  of  whom  my  person  was  searched,  and  my  money, 
as  well  as  every  thing  of  value  found  in  my  possession,  was  taken 
from  me.  Colonel  Maitland  treated  me  wiih  a  considerable  degree 
of  courtesy,  and  when  I  complained  to  him  that  I  had  been  kidnap- 
ped and  brought  ofl'  from  my  own  country,  he  stated  to  "ne  "  that 
he  was  but  the  military  commandant  of  the  post,  and  could  not  act 
at  discretion,  but  as  such  military  commandant,  must  send  me  im- 
mediately to  Toronto,  to  the  Lieutenant  Governor."  While  in  thejof- 
fleers'  guard-room^  some  of  the  British  officers  present  abused  me 
with  invidious  observations  in  relation  to  the  character  of  my 
country,  which  I  was  inclined  to  repel  j  but  another  of  the  officers 
present  pulled  me  by  the  sleeve  and  suggested  that  I  should  not  re- 
gard their  observations — and  I  desisted  to  reply.  After  this,  I  was 
sent  back  to  ♦'.ic  guard-room,  where,  in  the  evening,  I  was  oalled 
upon  by  a  clergyman,  resident  at  Amherstburgh,  [it  should  be 
understood  that  Maiden  and  Amherstburgh,  as  mentioned  in  these 
proceedings,  are  names  of  but  one  place — the  fort  and  the  town- 
ship is  called  Maiden,  the  village  Amherstburgh,]  to  whom  I  stated 
that  it  was  my  desire  to  be  detained  at  Amherstburgh  a?  few  days, 
so  that  I  could  make  my  case  known  to  my  friends  in  Michigan, 
as  it  might  be  important  for  me  to  do  so  in  case  I  was  to  be  put  up- 
on trial.  He  advised  me  to  see  Colonel  Maitland,  and  make 
the  request  to  him  in  person.  In  accordance  with  his  advice,  I  pro- 
cured one  of  the  officers  of  the  32.1  Regiment  to  inform  Colonel 
Maitland  that  JL  desired  to  see  him  .«l  the  guard-room  where  I  was 
confined.  Soon  after  this  I  was  sent  for,  and  taken  again  to  the 
officers'  guarr-room,  where  I  was  met  by  an  officer  of  the  British 
army  who  said  to  me,  "  that  Colonel  Maitland  was  an  invalid  and 


TESTIMONY    OF    LT.    COL.    PRINCE. 


Ill 


ame  the 
Maiden, 
ible  Co- 

ind  Col. 
2nu  bolh 
ind  hav- 
;  a  corn- 
Colonel 

,h  a  sword 

ess  and  a 

any  mat- 

uy  objec- 

immunica* 
imediately 
ced  in  the 
n  taken  to 
s  the  mill- 
icers  were 
ny  money, 
was  taken 
ble  degree 
en  kidnap- 
me  "  that 
lid  not  act 
id  me  im- 
e  in  Ihejof- 
ibused  me 
ter  of  loy 
he  officers 
Id  not  re- 
his,  I  was 
ivas  called 
should  be 
in  these 
Ithe  town- 
I  stated 
few  days, 
ichigan, 
e  put  up- 
Ind  make 
[ice,  I  pro- 
Colonel 
re  I  was 
in  to  the 
e  British 
alid  and 


Maitlaqd  that  the  Prisoners  should  be  brought  before  him, 
the  witness,  Major  Lachlan,  and  Captain  Girty,  all  of 
whom  were  magistrates  in  the  Western  District — that 
Mr.  Sutherland  was  in  consequence  brought  before  them 
about  mid-day,  in  a  room  in  the  garrison  where  any  body 
,.'ho  pleased  was  allowed  to  enter ;  and  the  room  was  filled 
with  military  men  and  civilians  (11.) — that  the  Prisoner, 
Mr.  Sutherland  was  brought  in  first,  and  alone,  apart 
from  his  companion  ;  witness  then  reminded  him  of  his 
having  expressed  a  wish  to  make  a  communication  to 
them ;  witness  stated  that  he  and  his  brother  magistrates 
were  ready  to  receive  any  information  he  muy  choose  to 
give,  at  the  same  time  reminding  him  that  he  need  not 
say  any  thing  which  would  criminate  himself  (12.) — that 
he  said  he  was  aware  of  that,  and  that  he  would  frankly 
tell  us  all  he  knew  (13.) — that  he  then  made  a  voluntary 

unable  to  come  up  to  the  guard-room,  and  had  sent  him  to  receive 
any  communication  I  might  have  to  make."  This  officer  was  one 
of  those  who  had  abused  me  upon  my  being  first  brought  to  the  of- 
ficers' guard-room,  and  I  could  but  conceive  that  a  request  through 
him  would  be  of  little  avail,  and  so  I  replied,  "  that  I  had  no  com- 
munication to  make,"  and  he  ordered  me  to  be  taken  back  again  to 
the  guard-room.  Some  time  after,  another  gentleman,  a  field  offi- 
cer in  the  British  army,  came  to  me  and  said,  "  that  he  understood 
I  had  wished  to  make  a  communication  -,"  and  stated  "  that  if  I  had 
any  thing  to  communicate,  I  might  make  it  to  him,  and  that  he 
could  perhaps  turn  it  to  some  advantage  for  me ;"  to  him  I  also  re- 
plied, ''  that  I  had  no  communication  to  make."  Further  than  this, 
there  was  nothing  said  to  me  in  relation  to  any  communication  eith- 
er at  Amherstburgh,  or  elsewhere. 

(11.)  The  room  in  which  the  examination  was  had,  was  the  of- 
ficers' guard-room,  which  was  not  permitted  to  be  entered  but  by 
officers ;  and  there  were  no  persons  present  at  the  examination, 
who  were  not  of  the  military. 

(12.)  When  taken  before  Prince,  Lachlan  and  Girty,  I  was  told 
by  Prince,  "  that  they  were  three  justices  of  the  peace  of  the  West- 
ern District  of  Upper  Canada,  and  that  I  was  brought  before  them 
for  examination."  It  is,  also,  true  that  Prince  did  remind  me, 
when  he  commenced  the  examination,  on  that  occasion,  ^'thatl 
need  not  say  any  thing  that  would  criminate  myself" 

(13.)  I  had  not  desired  an  examination  before  Princu  and  his 
brother  magistrates ;  nor  had  I  done  or  said  any  thing  to  induce 
the  measure ;  and  when  I  was  brought  before  them,  I  then  thought, 
as  I  still  think,  that  the  examination  was  had  solely  with  a  view  to 
elicit  some  acknowledgment  or  admission  from  me  which  might  be 
used  against  me  upon  a  trial  which  they  supposed  I  was  soon  to 


112 


TESTIMONV    OF    LT.    COL.    PRINCE. 


f!l 


btatemont  which  witness  licard  throughout — after  lie,  the 
Prisoner,  had  made  this  statement,  witness  reduced  th«' 
substance  of  it  to  writing  in  liis  presence  (14.) — (the 
witness  also  produced  a  newspaper,  which  newspaper  ho 
handed  into  the  Court,  it  being  the  "Detroit  Morning 
Post,"  dated  the  12tl)  of  January,  1838,  the  paper  con- 
taining Mr.  Sutherland's  despatches  and  proclamations) 
(15.) — that  when  witness  had  finished  the  statement  above 

be  subjected  to.     Understanding  the  examination  lobe  had  for  such 
purpose,  I  resolved  to  give   them  what  they   desired,  to  their  own 
satisfaction— but  in  no  way  that  should  be  of  less  service  to  myself 
than  to  them.    So  I  told  them  "  that  I  would  frankly  tell  them  all  I 
knew  in  relation  to  those  matters,  in  which  I  had  been  concerned  ;'' 
and  in  my  answers  to  the  questions  put  to  me,  I  fully  and  freely  sta- 
ted the  part  I  had  had  in  the  matters  about  which  they  inquired. 
But,  whenever  the  question  was  such  as  to  require  an  answer  that 
might  be  made  testimony   against  me,  with  my  answer  I  took 
care   to  give  a   statement  of  such  matters  ps  would  destroy  any 
force  the   answer  might   have   as  testimony    against  me — or  of 
some  fact  'that   should  weigh  equally  in  my  favor.    Thus,  whil« 
I   admitted  my   connection   with  the   Canadian   Patriots,   and  a 
participation  in  their  movements,  1  stated  matters  which  went 
to  deny  every  fact  on  which  a  trial  could  be  predicated,  under  the 
provisions  of  the  law  of  the  12th  of  January,  of  the  enactment  of 
which  I  had  been  made   acquainted  j  and   on  the   examination  I 
mentioned  the  names  of  no  persons  except  Van  Rensselaer  and 
Mackenzie. 

examination,  Prince  drew  up  a  paper  which 

of  the   examination ;  and  after  it  had  been 

it  to  me.      It  contained  only   a  brief  state- 

the   matters   I   had   related,  and  those   only 


(14.)  During  my 
he  called  a  record 
concluded,  he  read 
ment  of  a  few  of 


which  might  be  used  as  testimony  against  me.  Alter  read- 
ing the  same,  Prince  asked  me  "if  it  was  correct?"  I  re- 
plied, "  that  I  had  stated  the  matters  the  paper  contained,  but 
with  many  others,  which  were  omitted."  To  which  he  replied, 
"  that  he  was  aware  of  the  fact,  but  to  write  out  all  I  had  said  would 
require  too  much  paper  and  ink  to  be  used  at  that  time  ;"  and  as 
he  did  not  request  me  to  sign  the  paper,  I  took  no  further  excep- 
tions to  the  imperfections  it  contained.  I  knew  that  the  paper 
Prince  had  drawn  up,  without  my  signature,  could  not  be  read  in 
any  court  claiming  to  act  upon  legal  principles  and  rules,  as  evi 
dence  against  me  ;  and  I  knew  as  well  that  if  he  or  any  other  of 
the  persons  present  at  the  examination,  were  examined  as  wit- 
nesses upon  any  trial  on  which  I  might  be  put,  to  prove  my  admis- 
sions, I  could  show  by  them  that  all  the  admissions  I  had  made. 
(taken  together,)  went  to  exculpate,  and  not  to  criminate  myself. 

(15.)  These  were  certain  despatches  to  General  R.  Van  Rensse- 
laer, sent  from  Bois  Blanc  Island,  with  the  proclamations  issuei! 
by  me  at  that  place. 


TESTIMONY   OF    LT.    COL.    PRINCE. 


113 


he,  the 
need  the 
I.)— (the 
paper  he 
Morning 
per  con- 
inations) 
?nt  above 

d  for  such 

their  own 
?  to  myself 

them  all  I 
)ncerned  ;'' 

freely  sta- 
y  inquired, 
nswer  that 
!ver  I  took 
estroy  any 

me — or  of 
'hus,  whilt; 
ots,  and  a 
vhich  went 
,  under  the 
lactment  of 

mination  I 
sselaer  and 

aper  which 
had  been 
brief  state- 
hose  only 
A.fter  read- 
?"      I  re- 
tained, but 
he  replied, 
said  would 
He 
her 

the  paper 
e  read  in 
les,  as  evi 
y  other  of 
ed  as  wit- 
my  admis- 
had  made, 
myself, 
an  Rensse- 
3ns   issued 


:"  and  as 
excep- 


rnentioncd,  which  he  now  holds  in  his  hand,  he  read  it 
deliberately  over  to  the  Prisoner,  and  asked  him  if  it  was 
substantially  true — he  said  it  was. 

Here  the  witness  delivered  the  pajier  to  the  Judge  Ad- 
vocate, who  read  it,  when  it  was  referred  to  the  Appen- 
dix. (16.) 

(16.)  I  have  made  every  exertion,  possible  for  me,  to  procure  a 
copy  of  this  paper,  but  liave  failed  j  as  will  be  shown  by  the  fol- 
lowing correspondence : 

Copy  of  a  letter  to  the  Lieuteriant  Governor. 
To  Hrs  Excellency  Sir  George  Arthur,  Lieut,  Governor, &c. 

Thomas  Jefferson  Sutherland,  a  citizen  of  the  United  States  of 
America,  now  detained  a  Prisoner  by  the  Government  of  the  Pro- 
vince of  Upper  Canada,  would  respectfully  represent  to  your  Ex- 
cellency, that  it  is  his  intention  to  present  the  circumsta^'ces  of  his 
capture  and  detention  to  Her  Majesty  the  Queen  of  Great  Britain 
and  Ireland,  to  the  end  of  relief,  and  that  he  may  be  liberated  from 
his  present  condition,  and  permitted  to  return  to  his  country  and 
friends.  Wherefore,  he  solicits  your  Excellency  to  cause  to  be  made 
and  delivered  to  him  a  cer/i/ietZ  co/)y  of  all  the  proceedings  taken 
against  him  by  and  before  a  Militia  General  Court  Martial  in  this 
Province,  with  his  defence  made  before  said  Court  Martial  j  and 
copies  of  the  Laws  or  Statutes  under  which  such  proceedings  were 
had,  that  he  may  lay  the  same,  with  his  representation,  before  Her 
Majesty  by  an  early  day. 

Very  respectfully  submitted  to  your  Excellency. 

TH :  J.  SUTHERLAND. 
Home  District  Gaol,  ) 
23d  April,  1838.       i 

Copy  of  letter  from  J.  Joseph  to  Sheriff  Jarvis. 

Government  House,  ) 
26th  April,  1838.      J 

Sir — I  am  commanded  by  His  Excellency  the  Lieutenant  Gover- 
nor, to  request  you  to  be  so  obliging  as  to  acquaint  T.  J.  Suther- 
land, a  convict  in  the  gaol  of  this  city,  under  sentence  of  transpor- 
tation, that  his  Excellency  has  received  his,  memorial,  requesting  to 
be  furnished  with  a  **  certified  copy  of  all  the  proceedings  taken 
against  him  by,  and  before,  a  Militia  General  Court  Martial  in  this 
Province,  with  his  defence  made  before  said  Court  Martial — and 
copies  of  the  laws  or  statutes  under  which  such  proceedings  were 
had — that  he  may  lay  the  same,  with  this  petition  before  Her 
Majesty,  by  an  early  day."  In  reply  to  this  request  His  Excellen- 
cy begs  you  to  inform  the  Prisoner,  that  a  copy  of  the  Trial,  and 
the  documents  connected  with  it,  has  been  transmitted  by  His  Ex- 
Cellency,  to  the  Secretary  of  State  for  the  Colonies. 
I  have  the  honor  to  be  sir. 

Your  obedient  humble  servant. 

Mr.  Sheriff  Jarvis.  J.  JOSEPH. 

The  above  was  put  into  my  hands  by  Mr.  Sheriff  Jarvis. 

10* 


r 


114 


TESTIMONY    OF    LT.    COL.    PRINCE. 


Witness  here,  also,  delivered  to  the  Judge  Advocate  the 
newspaper  above  mentioned,  who  read  the  publications 
stated  in  the  declaration  of  Mr.  Sutherland,  and  referred 
it  to  the  Appendix. 

That  witness  also  recollects  a  statement  made  by  Mr. 
Sutherland  when  he  was  taken  prisoner,  which  witness 
desires  may  now  be  taken  down — that  after  Mr.  Suther- 
land stated  that  '*  they   were  American  citizens  going 

Subsequently^  and  while  I  was  still  a  prisoner  in  the  hands  of  the 
British  Government,  I  addressed  a  letter  to  Colonel  Fitz  Gibbon, 
who  was  Judge  Advocate  of  the  Court  Martial  by  which  I  was 
tried,  requestinj?  him  to  procure  for  me,  "  copies  of  the  orders 
of  Sir  F.  B.  Head,  then  Lieutenant  Governor,  ordering  the 
the  Court  by  which  1  wos  tried,  with  copies  of  all  the  proceedings 
before  said  Court  Martial  on  the  1st,  2(1,  and  3d  days  of  its  sittings, 
with  a  copy  of  a  jiaper  which  was  produced  before  the  Court  by  CO' 
lonel  Prince,  purporting  to  be  a  record  of  an  fxamination  of  mytelf 
before  three  justices  of  the  peace  at  ^mhentburgh  in  Upper  Canada ; 
together  with  copies  of  the  proceedings  of  the  said  Court,  subse- 
quently to  the  closing  of  the  testimony,  excepting  my  defence."  In 
reply  I  received  the  following : 

Copy  of  a  Utter  from  Colonel  Fitz  Gibbon. 

Toronto,  7th  November,  1838. 
Sir — On  the  5th  inst.  I  addressed  a  short  letter  to  you  acknow- 
ledging the  receipt  on  that  day,  of  your  letter  to  me  dated  the  lllh 
ultimo. 

On  the  6th  I  applied,  through  the  civil  Secretary  of  the  Lieuten- 
ant Governor,  for  His  Excellency's  leave  to  give  you  a  copy  of  such 
parts  of  the  proceedings  of  the  Court  Martial  as  you  desired,  and 
yesterday  I  received  an  answer  from  the  Secretary  of  which  the 
following  is  a  copy  : 

I  remain.  Sir,  your  Obedient  Servant. 

JAMES  FITZ  GIBBON. 
Thomas  Jefferson  Sutherland,  Esquire, 

State  Prisoner,  Quebec. 
(copy.) 

Government  Hottse,  ) 
6th  Nov.  1838.      J 
Sir — Having  laid  before  the  Lieutenant  Governor  the  letters  of 
Thomas  Jefferson  Sutherland,  which  you  handed  me  yesterday,'! 
have  received  His  Excellency's  commands  to  inform  you,  that  the 
request  of  that  person  for  a  copy  of  the  proceedings  of  the  Court 
Martial  held  upon  him  at  this  city  cannot  be  complied  with,  as 
it  is  unusual  to  grant  copies  of  proceedings  in  such  cases. 
I  return  you  the  letter  you  gave  me ;  and  have  the  honor  to  be, 
Sir,  your  most  obedient  humble  servant. 

(Signed,)     JAMES  MACAULEY. 
James  Fitz  Gibbon,  Esquire. 


)cate  the 
lications 
referred 

3  by  Mr. 

witness 

Suther- 

is  going 

nds  of  the 
iz  Gibbon, 
lich  I  was 
he  orders 
ering  the 
roceedings 
ts  sittings, 
urt  by  Co- 
of  myself 
r  Canada ; 
urt,  gubse- 
ence."    In 


Br,  1838. 
u  acknow- 
dthe  nth 

Lieuten- 
py  of  such 
sired,  and 
which  the 


BBON. 

lec. 

atrsE,  I 
38.  i 
letters  of 
sterday/I 
,  that  the 
he  Court 
with,  as 

|»r  to  be, 

ILEY. 


CROSS-EXAMINATION    OF    LT.    COL.    PRINCE. 


115 


about  their  business,"  witness  remarked  that  Americans 
had  no  business  there  in  these  timeSy  when  Prisoner  re- 
plied, that  *•  he  was  going  to  Loioer  Sandusky  to  endeavor 
to  intercept  some  persons  who  had  stolen  some  money  from 
him  and  his  tru7ik  and  clothes,  while  he  was  in  Monroe*^ 
(17.) — that  witness  then  remarked  that  he  was  coming  in 
a  direct  line  from  the  American  to  the  Canadian  shore ; 
and  witness  here  adds,  that  he  was  then  at  least  one  mile 
at  this  side  of  the  line  leading  to  Sandusky,  and  his  steps 
were  directed  towards  the  Canada  shore  (18.) — that  wit- 
ness adds,  that  a  line  from  where  the  Prisoner  was  taken 
to  Sandusky,  would  run  in  about  a  south-westerly  course, 
as  far  as  he  can  judge,  and  that  they,  the  prisoners,  were 
going  in  a  course  about  south-easterly  (19.)  he  thinks,  and 
if  they  had  pursued  the  course  they  had  been  travelling, 
they  would  have  been  on  the  Canada  shore  in  about  half 
an  hour.  Witness  states  positively  that  the  Prisoner  is 
the  same  person  he  saw  at  Detroit,  and  whom  he  took 
Prisoner  on  the  ice. 


Cross-Examination  of  the  witness  Priiice,  by  General 
Sutherland. 

1*^  Question.  Were  you,  at  the  time  I  was  captured, 
in  a  certain  degree  of  excitement  ? 

Answer.  I  was  excited  in  a  little  degree  with  pleasure 
at  finding  a  man  whom  I  had  desired  to  meet.  1  ivas  ex- 
cited with  pleasure,  but  nothing  else. 

[Prince  never  approached  nearer  to  me,  at  the  time  of 
my  capture,  than  the  distance  of  fifteen  or  twenty  paces. 
He  appeared  to  be  very  much  agitated  ;  and  when  I  walk- 
ed towards  his  sleigh,  he  placed  himself  on  the  opposite 

(17.)  I  made  no  such  statement  as  this  at  the  time  of  my  capture. 
It  was  made  at  the  examination  on  the  day  following. 

(18.)  If  1  had  been  travelling  towards  the  Canada  shore,  why 
did  they  not  wait  till  I  had  arrived  there  ? 

( 19.)  It  is  true  that  I  was  travelling  in  a  south-easterly  direction ; 
and  that  direction  Viras  a  right  line  from  the  place  from  whence  I 
started  to  Sandusky,  as  any  one  may  ascertain  by  an  examination 
of  a  map  of  that  part  of  the  country.  It  will  also  be  perceived 
by  an  examination  of  such  map,  that  if  an  individual  be  placed  up- 
on the  ice,  (or  on  the  water,)  at  any  spot  at  the  head  of  Lake  Erie, 
such  individual  would  never  get  into  Canada  by  pursuing  a  south- 
easterly direction ;  the  shore  of  Canada  being  to  the  north. 


116 


CROSS-EXAMINATION  OF 


side  to  that  which  T  approached,  and  kept  himself  so  that 
his  liorses  were  between  us  ;  and  remained  so  until  I  had 
pone  to  another  sleigh,  a  few  rods  in  the  rear,  into  which 
1  got,  and  was  taken  to  Maiden.  There  was  no  exhibi- 
tion of  pleasure  marked  in  the  countenance  of  Prince  ; 
and  his  agitation  could  not  have  been  from  fear — as  the 
number  of  his  party  forbade  that.  Dut,  from  his  subse- 
quent conduct,  I  am  led  to  suppose  it  resulted  from  his 
meditating  my  immediate  assassination.] 

2d  Question,     Might  you  not  hr.ve  mistaken  what  was 
said  by ,  at  the  time  of  the  capture,  and  after,  for 


what  had  beeij  said  by  me  ? 
Answer.     Certainly  not. 


said  nothinjr  that  1 


heard  except  his  asking  me  whether  he  was  bound  to  de- 
liver his  sword  to  Haggerty,  when  he  demanded  it  by  my 
order ;  and  I  have  no  recollection  of  any  thing  else  said 
l)y on  that  occasion. 

3^  Question.     Did ,  at  the  time  of  the  capture, 

say  that  we  were  on  American  ground? 

Answer.     Not  in  my  hearing.     I  never  heard  him  sa'."  so. 

4M  Question.  Was  it  not  Sandusky  instead  of  Lower 
Sandusky,  that  I  named  as  the  place  tnat  I  was  going  to  ? 

Answer.  No.  Lower  Sandusky  was  the  place  named, 
I  am  certain. 

[This  question  was  not  material.  It  was  put  merely  to 
befog  the  witness,  who  had  shown  a  determination  to  an- 
swer no  question  I  should  put  to  him  with  any  regard  to 
truth.  At  the  time  of  my  capture,  I  only  knew  of  Sandusky. 
Of  Lower  Sandusky  I  had  never  heard,  but  am  now  in- 
formed that  Portage  was  once  called  Lower  Sandusky.] 

5th  Question.  When  captured,  did  I  not  tell  you  that 
we  were  going  to  a  schooner,  that  was  frozen  in  the  ice 
near  by,  for  the  night  ? 

Answer.  He  did  not  say  so  when  captured ;  but  he  said 
so  in  ahmU  tioenty  minutes  after ;  and  I  observed  upon  the 
improbability  of  the  act,  because  the  schooner  had  been 
stranded  in  the  ice  all  the  ivinter^  a  long  distance  from  the 
shore,  and  without  any  person,  and  without  any  fuel  on 
board. 

6th  Question.  How  did  you  know  that  there  was  neither 
persons,  nor  fuel  on  board  ? 


LT.    COL.    PRINCE. 


117 


If  SO  thai 
itil  I  hnd 
ito  which 
o  exhibi- 
Prince  ; 
— as  the 
i.s  subse- 
froru  his 

*vhat  was 
after,  for 


that  1 
nd  to  de- 
it  by  my 
else  said 

capture, 

'm  sa';  so. 
»f  Lower 
joing  to  ? 
named, 

lerely  to 
to  an- 
jgard  to 
mdusky. 
inow  in- 
idusky.] 
rou  that 
the  ice 

he  said 
ipon  the 

id  been 
\rom  the 

fuel  on 

neither 


Answer.  I  neivr  s/nted  tliat  1  did  kmur  that  there  icaif 
III)  pfrsons  or  fuel  on  hoard  the  schooner  ;  but  I  iiad  seen 
her  in  the  same  position,  blocked  tip  in  ilie  ice,  abuiil  u 
month  before,  and  I  look  it  for  {unanted  that  llwre  were 
neither  p(;rsons  nor  fuel  on  bonrd  of  her  ;  and  1  believe 
there  were  not. 

1th  Question.  Where  did  you  first  see  the  schooner  in 
([uestion  ? 

Answer.  [  first  saw  the  schoon(!r  in  the  place  where 
she  was  when  i  captured  Mr.  Sutherland  ;  (nid  that  place 
is  luilhin  the  Prorince  of  Upper  Ca/uida^  and  not  within 
f' e  waters  of  the  United  States. 

[This  schooner,  spoken  of  by  the  witness  Prinre,  lay 
frozen  in  the  ice,  at  the  time  of  my  capture,  at  a  distance 
of  about  two  miles  and  a  half  above  the  West  Sister,  and 
within  a  distance  of  from  two  to  three  miles,  north  from 
the  main  shore;  of  Michigan,  and  all  of  seven  miles 
within  the  United  States  ;  the  boundary  line,  as  it  has 
been  settled  between  the  government  of  the  United  States 
and  Great  Britain,  running  between  the  Islands  called  the 
Middle  Sister  and  the  East  Sister.] 

Sth  Question.  How  far  was  I  from  the  schooner  at 
the  time  of  my  capture  ? 

Anstver.     Within  half  a  mile. 

9th  Question.  Did  1  not  say  to  yon  at  the  time,  that  I 
supposed  the  schooner  was  within  the  lines  of  the  United 
States  ? 

Ansiver.  I  do  not  recollect  any  thing  of  thr  kind  being 
said.     It  certainly  was  not  said  to  me. 

10^/i  Question.  How  near  were  you  to  the  schooner  the 
first  time  you  saw  her  ? 

Ansiver.  I  was  on  the  main  lan*^'  "avelling  on  the  Ca- 
nada side. 

[I  was  sent  off  for  Toronto,  the  next  day  after  my  cap- 
ture. From  Maiden,  our  route  was  down  the  shore  of  the 
lake  for  some  fifteen  or  twenty  miles.  As  we  travelled 
on  the  edcre  of  the  ice,  I  took  the  occasion  to  look  for  this 
schooner,  as  we  came  near  opposite  the  place  of  my  cap- 
ture, when  I  observed  that  the  schooner  was  so  far  distant 
from  the  Canada  shore,  that  from  thence  nothing  could  be 


w 


118 


CROSS-EXAMINATION  OF 


seen  of  her  but  a  speck  of  the  pointed  masts  ;  and  I  called 
this  fact  to  the  attention  of  a  number  of  the  men  belong- 
ing to  the  escort,  who  were  of  the  party  by  which  I  had 
been  cantured;  and  who  then  agreed  with  me,  that  I  had 
been  ^  ptured  six  or  seven  miles  within  the  lines  of  the 
United  States.] 

11th  Queslio?i.  Was  there  more  than  one  schooner  fro- 
zen in  the  ice  in  the  vicinity  of  my  capture  ? 

Answer.  There  was  one  about  four  ?niles  below,  close 
upon  the  Canada  shore,  in  the  township  of  Colchester,  I 
believe  ;  and  those  were  the  only  two  I  have  seen  frozen  in 
the  ice  in  that  neighborhood. 

12th  Question.  Had  there  been  any  others,  were  you 
likely  to  have  seen  them  ? 

Answer.  If  there  had  been  any  others  in  that  vicinity, 
within  three  or  four  miles  of  the  .^choor^rs  spoken  of,  I 
should  have  seen  them. 

13th  Question.  Had  the  ice  been  broken,  and  separa- 
ted between  the  shores  of  the  United  States  and  Canada, 
above  the  schooner  near  which  I  was  captured,  a  short 
time  before  ? 

Answer.  It  is  impossible  for  me  to  say  whether  it  was 
or  was  not  broken  and  separated,  not  having  been  in  the 
neighborhood  at  the  time  mentioned.  I  have  been  at 
Sandwich  where  I  reside,  and  which  is  twenty  miles  dis- 
tant, or  I  have  been  at  Toronto. 

14:th  Question.  How  many  miles  below  Amherstburgh 
were  you  when  you  first  discovered  me  upon  the  ice  ? 

Answer.  As  far  as  I  can  judge  from  memory,  about 
nine  miles. 

15th  Question.  How  long  a  time,  after  first  discovering 
me,  was  it  before  you  pursued  ? 

Answer.     I  think  it  ivcs  about  ttoenty  minutes. 

IQth  Question.  Were  you  above  or  below  me,  (in  re- 
ference to  the  current  of  the  waters,)  when  you  left  the 
Canada  shore,  to  pursue  ? 

Answer.     I  was  above. 

17th  Question.  Was  I  not  within  three  mih>,  of  an 
island,  lying  in  the  vicinity  of  the  r^.hooner  mentioned,  at 
the  time  of  my  capi'ira  ? 

Answer.     Certainly  not,  as  far  as  I  know.     The  only 


LT.    COL.    PRINCE. 


119 


(1 1  called 
1  belong- 
ch  I  had 
bat  I  had 
es  of  the 

3oner  fro- 

low^  close 
;hester,  I 
frozen  in 

kvere  you 

t  vicinity, 
iken  of,  I 

d  separa- 
I  Canada, 
[,  a  short 

^er  it  was 

en  in  the 

been   at 

niles  dis- 

^rstburgh 
ice  ? 
ry,  about 

covering 


(,  (in  re- 
left  the 


■o  of  an 
oned,  at 


Island  with  which  I  am  acquainted,  is  Bois  Blanc,  and 
that,  I  think,  must  be  se:e7ior  eight  wiles,  [the  true  dis- 
tance was  seventeen  or  eighteen,]  fi'om  the  schooner  near 
which  Mr.  Sutherland  was  captured. 

\Bois  Blanc,  (or  White  Wood  Island,)  is  situated  at  the 
mouth  of  the  Detroit  river,  directly  opposite  Fort  Maiden, 
and  the  village  of  Amherstburgh,  at  a  distance  of  only 
about  six  hundred  yards  from  the  Canada  shore  ;  and  can- 
not be  seen  from  the  place  where  I  was  captured.] 

\Sth  Question.  To  what  point  of  land  on  the  United 
States  shore,  was  the  place  of  my  capture  nearest  ? 

Answer.  I  am  v.oi  sufficiently  acquainted  with  the 
shore  on  the  United  States  side  of  the  water  ;  but  I  think 
the  nearest  point  must  have  been  at,  or  beloiv,  [or  beloio, 
was  added  in  the  record,  by  the  direction  of  Col.  Kings- 
mill — it  was  not  so  stated  by  Prince,]  Gibralter  in 
Michigan. 

[Gibralter,  is  directly  opposite  Bois  Bla?ic  Island;  or  very 
nearly  so  ;  and  is  situated  at  a  distance  of  from  ten  to  fif' 
teen  miles  from  Hartly's  Point,  opposite  which  place,  Gir- 
ty  testified  to  be  nearest  the  place  of  my  capture.  Prince 
put  it  '^  at  two  or  three  miles  below."] 

19th  Question.  To  what  point  of  land  on  the  Canada 
shore,  was  the  place  of  my  capture  nearest  ? 

Answer.  There  is  no  particular  name  that  I  can  give 
to  the  point  of  land  nearest  to  the  spot  where  I  captured 
Mr.  Sutherland  ;  but  I  think  it  must  have  been  about  two 
or  three  miles  below  a  place  called  Hartly's  point. 

[At  Hartly's  Point,  the  boundary  line,  as  settled  between 
the  governments  of  the  two  countries,  runs  within  a  mile 
and  a  half  of  the  Canada  shore  ;  while  the  distance  across 
the  water  to  the  shore  of  the  United  States,  from  any 
place  between  two  or  three  miles  below  that  point,  cannot 
be  less  than  12  miles,  and  may  be  as  much  as  seventeen 
miles.] 

At  this  part  of  the  cross-examination,  the  hour  of  4 
o'clock,  P.  M.,  having  arrived,  the  President  adjourned 
the  court  till  10  o'clock  of  the  next  day. 


[he  only 


Br 


m 


FIFTH  DAY. 


Tuesday,   March  20,  1S38. 


The  Court  met  pursuant  to  adjournment.  Present,  the 
same  members  as  before.  The  Cross-Examination  of  the 
witness  Prince,  by  General  Sutherland,  continued. 

20th  Question.  What  is  the  distance  between  Amherst- 
burgh  in  Upper  Canada,  and  Monroe,  in  Michigan  ? 

Answer .  What  the  distance  is  across  the  river,  I  cannot 
tell ;  but  I  believe  the  distance  between  the  shore  of  the 
United  States,  opposite  Amherstburgh,  and  Monroe,  is 
about  twenty-five  miles. 

2\st  Question.  When  you  came  up  with  me  at  the 
time  of  my  capture,  was  I  on  the  north  or  soith  side  of  a 
line  drawn  from  Amherstburgh  in  Upper  Canada  to  the 
nearest  point  on  the  shore  of  Michigan  ;  and  if  on  the 
south,  at  what  distance  from  such  line  ? 

Answer.  It  is  impossible  for  me  to  answer  the  ques- 
tion without  reference  to  a  map ;  but  I  believe  the  prison- 
er was  not  on  the  south  side  but  on  the  east  side  of  such 
line. 

It  was  here  proposed  by  the  Judge  Advocate  to  produce 
J.  Macauley,  the  Surveyor  General  of  the  Province  of  Up- 
per Canada,  and  co  examine  him  as  a  witness  for  the  pur- 
pose of  establishing  where  the  boundary  line  was  which 
had  been  settled  by  the  g'^vernment  of  the  two  countries. 
To  this  General  Sutherland  objected,  and  insisted  upon 
his  right  to  proceed  with  the  cross-examination  of  Prince. 
His  objections  were,  however,  over-ruled  by  the  Court, 
and  Mr.  Macauley  allowed  to  be  called  by  the  Judge  Ad- 
vocate. 

/.  Macauley,  Surveyor  General  of  the  Province  of  Upper 
Canada,  being  duly  sworn  on  the  holy  Evangelists,  states 
to  the  Court : 

That  certain  sheets,  which  were  then  produced  in 
Court,  (being  parts  of  a  map,  purporting  to  show  the  line 
established  by  the  Commissioners  under  the  Treaty  ol 
Ghent,  as  the  dividing  line  between  the  United  States  and 
the  Province  of  Upper  Canada,)  were  found  by  him  in  his 
office,  remaining  there  as  part  of  the  records  thereof— 
that  the  line  laid  down  on  the  maps  or  sheets  produced, 


isent,  the 
ION  of  the 
id. 

Amherst- 
an  ? 

,  I  cannot 
Die  of  the 
onroe,    is 

ne  at  the 
side  of  a 
da  to  the 
if  on  the 

the  ques- 
he  prison- 
le  of  such 

Lo  produce 
ice  of  Up- 
)r  the  pur- 
ras  which 
countries, 
sted  upon 
f  Prince. 
Court, 
Lidge  Ad- 


CROSS-EXAMINATION  OF    LT.    COL.    PRINCE. 


121 


le 


of  Upper 
5ts,  states 

luced  in 
the  line 
reaty  of 
itates  and 
im  in  his 
hereof— 
reduced, 


as  the  boundary  line  in  the  neighborhood  of  Amherstburgh, 
was  not  correct — that  he  knew  this  only  by  representa- 
tion. 

The  Judge  Advocate  then  stated  to  the  Court  that  he 
had  no  further  inquiries  to  make  of  Mr.  Macauley;  and 
he  was  directed  to  stand  aside. 

General  Sutherland  insisted  upon  his  right  to  cross-exa- 
mine this  witness,  but  it  was  denied  to  him  by  the  Court ; 
and  he  was  not  cross-examined. 

[Upon  the  production  of  the  sheets,  or  drawings,  which 
it  was  alleged  would  shovv  the  boundary  line  as  settled  by 
the  commissioners  under  the  treaty  of  Ghent,  I  at  once 
perceived  that  the  line  as  marked  on  those  maps,  would 
have  placed  me  within  the  limits  of  the  United  States, 
even  if  I  had  been  captured  at  the  distance  of  a  mile  and 
a  half  from  the  Canada  shore,  at  the  place  which  Prince 
had  testified  he  had  taken  me,  and  called  the  attention 
of  the  Court  to  this  fact.  It  was  then  said  by  the  members 
of  the  Court,  that  the  line  marked  on  the  map  was  not 
correct,  and  Mr.  Macauley  asserted,  "  that  he  had  under- 
stood that  the  line  was  erroneously  laid  down  on  the  sheets 
before  the  Court."  It  was  then,  also,  alleged  by  the  Court 
and  by  Mr.  Macauley,  that  the  sheets  produced  were 
but  copies  of  the  original  maps ;  and  they  were  thereupon 
immediately  rolled  up  and  withdrawn  from  the  Court.  I 
insisted  upon  my  right  to  examine  the  maps,  as  they  had 
been  inticduced  as  testimony  against  me ;  and  to  cross- 
examine  Mr.  Macauley  in  re'  "^'on  to  them;  yet,  the 
Court  refused  me  both,  and  Mr.  Macauley  picked  up  his 
maps  and  walked  off  with  them.] 

The  Cross-Examination  of  the  witness  Prince,  was  then 
resumed  by  General  Sutherland. 

22(i  Question,  To  what  point  of  land  did  the  schooner 
spoken  of  as  being  within  half  a  mile  of  the  place  of  my 
capture,  lie  nearest  ? 

Answer.  The  nearest  land  was  the  Canada  shore ;  but 
I  am  unable  to  designate  the  place  for  want  of  a  name 
to  it. 

23(i  Question.  Was  it  not  within  my  power  to  have 
crossed  over  to  the  American  side  of  the  line,  before  you 
could  have  taken  me  ? 

11 


r* 


122 


CROSS-EXAMINATION    OF 


li 


Answer.  I  can  only  give  an  opinion  on  thai  point.  I 
am  of  opinion  that  he  could  not. 

2^ih  Question.  At  what  distance  might  I  have  seen  j-ou 
approaching  me  ? 

Answer.  He  might  have  seen  us  from  the  time  we  left 
the  Canada  shore  in  pursuit  of  him,  if  he  had  been  on 
the  look  out. 

[At  the  time  of  my  capture  I  was  so  far  from  the  Cana- 
da shore,  that  by  me  nothing  distinctly  could  be  seen  on  it. 
Neither  tree,  nor  house  could  be  discovered  with  the  eye. 
The  land  held  but  one  deep,  dark  and  unvaried  hue.  When 
I  first  discovered  Prince  and  his  party,  they  were  then  from 
six  to  eight  miles  from  the  Canada  shore,  and  yet  so  far 
from  me  that  I  mistook  their  character,  and  supposed  their 
three  eleighs  to  have  been  three  persons  walking  upon 
the  ice ;  and  did  not  become  aware  that  the  objects  were 
sleighs  until  they  had  crossed  the  fracture  in  the  ice.] 

25th  Question.  Previous  to  my  examination  before 
you  and  the  other  two  magistrates,  at  Amherstburgh,  as 
testified  to  by  you,  did  I  tell  you  that  I  had  any  commu- 
nication to  make  to  you  or  any  one  else  ? 

ATiswer.     He  did  not  say  so  to  me  personally. 

[See  what  Prince  testified  to  in  his  direct  swearing,  in 
this  respect.] 

26th  Question.  At  the  time  of  the  examination  at  Am- 
herstburgh, (the  5th  inst.)  as  testified  to,  did  I  not  say 
that  I  had  been  on  Navy  Island  with  JVIackenzie  and 
Van  Rensselaer,  and  that  I  had  left  them  in  disgust,  or 
because  I  was  entirely  dissatisfied  with  all  their  proceed- 
ings ;  and  that  after  I  had  left  them,  Mackenzie  became 
one  of  my  bitterest  enemies  ? 

[The  object  of  this  inquiry,  and  of  the  27th,  which  fol- 
lows, was  10  rebut  any  proof  which  might  be  offered  to 
establish  that  part  of  the  Charge  which  alleged,  "  that  I 
was  joined  with  William  Lyon  Mackenzie  and  other  sub- 
jects, with  whom  I  was  in  arms  against  Her  Majesty,  af- 
ter the  12th  of  Jaruary,"  as  well  as  to  discredit  Prince's 
pretended  record  of  examination.] 

Answer.  He  certainly  did  say,  at  the  time  of  the  exa- 
mination at  Amherstburgh.  that  \e  had  been  on  Navy 
Island  with  Van  Rensselaer  and  Mackenzie,  and  that  he 


point.     I 

I  seen  you 

18  we  left 
[  been  on 

the  Cana- 
seen  on  it. 
li  the  eye. 
le.  When 
then  from 
yet  so  far 
losed  their 
cing  upon 
jects  were 
e  ice.] 
on  before 
burgh,  as 
y  commu- 


LT.    COL.    PRINCE. 


123 


anng, 


in 


)n  at  Am- 
not  say 
and 


I 


snzie 

isgust,  or 

proceed- 

3  became 

irhich  fol- 
ffered  to 
"  that  I 

ther  sub- 
esty,  af- 
Prince's 

I  the  exa- 
)n  Navy 
that  he 


was  dissatisfied  or  disgusted  with  Mackenzie.  But  he 
made  tw  such  remark  with  respect  to  Van  Rensselaer  ;  nor 
do  I  recollect  that  he  said  that  Mackenzie  had  become 
one  of  his  bitterest  enemies.  He  expressed  dissatisfac- 
tion with  Mackenzie,  as  to  his  military  arrangement  on 
the  island.  He  also  stated  that  Mackenzie  had  been 
plotting  against  him  on  Navy  Island. 

21  th  Question.  At  the  time  of  the  examination  at  Am- 
herstburgh,  did  I  say  that  I  ha  left  Navy  Island  before 
the  commencement  of  any  hostile  operations  ? 

Ansioer.  I  have  no  recollection  of  his  having  said  so. 
But  he  stated  he  was  second  in  command  under  General 
Van  Rensselaer ;  and  I  think  he  said  he  left  the  Island  be- 
fore the  destruction  of  the  Caroline.  I  think  he  stated, 
also,  that  he  left  on  or  about  the  29th  of  December. 

28th  Question.  Did  I  state  to  you  on  the  examination 
at  Amherstburgh,  of  which  you  have  testified,  that  I  had 
employed  or  joined  persons  or  a  party  at  Cleveland,  Ohio, 
with  whom  I  had  come  on  to  Gibralter  ;  or  did  I  state  to 
you  that  I  had  come  on  from  Cleveland,  in  the  same  boat 
with  a  party  of  unarmed  men  who  came  at  their  own  in- 
stances; and  whose  passage  money  was  paid  by  citizens 
of  Cleveland  ? 

Answer.  I  remember  nothing  that  passed  en  that  oc- 
casion, more  than  what  is  contained  in  the  written  state- 
ment before  the  Court.  It  is  not  an  examination — hut  it 
contains  a  voluntary  statement  of  the  Prisoner. 

[Prince  had  introduced  this  paper  to  the  Court  as  the 
record  of  an  examination  before  three  Justices  cf  the 
Peace  of  the  Western  District  of  U.  C. ;  and  it  had  been 
denominated  as  such ;  and  when  he  found  I  was  shak- 
ing its  character  by  the  cross-examination,  he  declined  to 
answer  further  inquiries.  Upon  my  insisting  upon  my 
right,  (in  accordance  to  their  own  laws,)  to  examine  its 
credit  as  a  record,  the  Court  sustained  him  in  his  refusal 
to  answer  my  inquiries,  and  Lieutenant  Colonel  Brown, 
put  into  his  mouth  the  last  sentence  of  his  answer  to  my 
28th  question.] 

29?A  Question.  At  the  examination,  you  have  testified 
to  at  Amherstburgh,  did  I  not  make  statements  which  are 
not  contained  in  the  record  of  that  examination  you  have 
produced  ? — Overruled. 


w 


124 


CROSS-EXAMINATION    OF 


[Upon  the  presentation  of  this  question  it  was  objected 
to  by  the  Court.  The  members  declared  that  there  had 
been  no  record  of  examinatioji  produced,  though  the  pa- 
per, in  fact,  was  headed  as  such  ;  that  the  paper  was 
but  a  memurandum  of  admissions.  I  then  insisted  that 
as  my  admissions  had  been  given,  in  part,  as  evidence, 
I  had  a  right  to  have  them  in  full.  The  question  I  pro- 
posed was,  however,  refused  to  be  put,  and  the  President 
threw  it  back  to  me.  The  conduct,  and  the  remarks  of 
the  members  of  the  Co'irt  were  so  extremely  unbecoming 
in  the  matter,  that  some  of  the  spectators  hissed  them. 
This  induced  the  President  and  the  Judge  Advocate  to 
threaten  that  the  Court  should  be  .cleared ;  and  Prince 
seemed  more  vindictive  than  ever.  I  was  determined, 
however,  to  push  the  inquiry,  and  endeavor  to  get  out 
the  facts,  by  varying  the  manner  of  the  question.] 

dO^A  Question.  Did  I  not  tell  you,  on  the  examination 
at  Amherstburgh,  of  which  you  have  testified,  that  the  pa- 
per that  you  then  read  me,  though  substantially  cor- 
rect as  far  as  it  went,  did  not  contain  the  explanations  I 
had  given — to  which  you  then  replied,  "  that  it  wrould  take 
too  much  paper  and  time  to  put  it  all  down  j"  or  words  to 
that  effect  ? 

Answer.  I  said  nothing  of  the  kind.  But  when  I  had 
read  over  the  statement,  I  asked  him  if  he  wished  to  add 
any  thing  more  ;  and  he  stated  that  if  he  was  aware  of 
the  exact  position  he  stood  in,  with  regard  to  us,  he 
might  be  induced  to  offer  his  services  to  us  ;  which  left 
an  impression  upon  my  mind  that  he  was  desirous  of  en- 
listing  in  mr  cause  against  the  Americans.  All  this  was 
said  after  the  statement  had  been  read  over  to  him,  by 
me,  and  I  looked  upon  it  as  a  conversational  remark  anH 
therefore  did  not  add  it  to  the  statement. 

[At  the  time  of  the  examination,  and  ever  afterwards,  I 
denied  the  right  of  the  British  to  put  me  on  trial  by  their 
laws  ;  and  when  before  the  three  Justices  of  the  Peace  at 
Amherstburgh,  I  argued  against  the  right  of  their  govern- 
ment to  try  me,  as  I  had  not,  as  I  urged,  ever  received  pro- 
tection from  their  laws.  So,  when  Prince  asked  me,  as 
he  did,  if  I  would  make  any  further  statements  to  them, 
I  said,  ^''if  Iknew  how  I  stood  ^  I  should  ^  perhaps^  he  more 


at  I 

be 

thej 

swe 

30tl 


you 
alle£ 
A 


LT.    COL.    PRINCE. 


125 


objected 
lere  had 
the  pa- 
,per  was 
ited  that 
ividence, 
)n  I  pro- 
'resident 
marks  of 
lecoming 
ed  them, 
rocate  to 
d  Prince 
ermined, 
)  get  out 

mination 
It  the  pa- 
ally  cor- 
inations  I 
ould  take 
words  to 

en  I  had 
d  to  add 
laware  of 
io  us,  he 
.ich  left 
,s  of  en- 
this  was 
him,  by 
ark  and 

[wards,  I 

their 

*eace  at 

govern- 

|ved  pro- 

me,  as 

to  them, 

Je  more 


at  liberty  to  speak  and  to  amwer  inquiries^  Meaning  to 
be  understood,  (as  I  believe  I  was,)  "  that  if  I  knew  that 
they  would  not  put  me  upon  trial,  I  should  be  free  to  an- 
swer inquiries."  All  the  rest  of  Prince's  answer  to  my 
30th  question,  is  fabrication  and  falsehood.  Prince  was 
aware  that  it  was  the  Patriot  portion  of  the  audience  who 
had  hissed;  hence  he  put  forth  that  statement,  (for  it  was 
no  answer  to  my  question,)  as  a  hit  upon  their  feelings.] 

3l5^  Question.  Did  you,  witness,  or  any  other  person, 
at  the  time  of  the  examination  at  Amherstburgh,  of  which 
you  have  testified,  ask  me  to  sign  the  paper  produced  and 
alleged  to  contain  a  record  of  my  statements  at  that  time  ? 

Afis%oer.  I  did  not  ask  him  to  sign  it,  nor  did  any  oth- 
er  person  in  my  presence.  In  my  practice  as  a  magistrate, 
I  generally  take  down  the  statements  of  prisoners  and  read 
over  and  explain  them  to  them,  and  make  a  minute  at  the 
foot,  of  what  they  state,  after  having  had  the  same  read 
over  and  explained  to  them ;  and  I  never  ask  them  to  sign 
them. 

32d  Questio7i.  On  the  examination  at  Amherstburgh, 
of  which  you  have  testified,  did  I  not  tell  you  that  I  had 
had  no  connection  with  the  Patriots,  since  the  middle  of 
February,  at  which  time  I  had  resigned  the  commission  I 
had  held  with  them  ? 

On  the  presentation  of  this  question,  it  was  objected  to 
by  a  number  of  the  members  of  the  Court ;  and  after  some 
conversation  between  General  Sutherland,  the  Judge  Ad- 
vocate, and  the  members  of  the  Court,  the  Court  was  or- 
dered to  be  cleared  ;  and  when  it  was  again  opened,  the 
Judge  Advocate  rose  and  said  to  him,  "  that  he  was  in- 
structed to  inform  him  the  Court  had  ruled  that  his  ques- 
tion should  not  be  put ;  and  that  they  had  further  ruled 
that  if  he  proposed  another  question  which  they  deemed  ir- 
relevant, he  should  not  be  allowed  to  propose  any  more  ques- 
tions for  this  witness  to  answer  /" 

33S  Question.  Has  witness  ever  examined  the  sword 
taken  from  me  at  the  time  of  my  capture.  If  so,  describe  it  ? 

Answer.  I  have  examined  the  sword,  and  it  is  a  taw- 
dry Yankee  sioord.  It  is  remarkably  sharp  at  the  end, 
sharper  than  swords  generally  are,  and  appeared  to  have 
been  recently  ground  and  whetted.     The  scabbard   is 

11* 


126 


CKOSS-EXAMINATION    OF    LT.    COL.    PRINCE. 


washed  or  plated  white,  with  devices  on  the  outside  ;  and 
as  he  has  asked  me  to  describe  it,  I  add  that  it  is  of  so 
Jine  and  paltry  a  character,  that  1  believe  a  Biitish  officer 
would  feel  himself  disgraced  by  wearing  it.  [Col.  Kings- 
mill  then  put  in  his  mouth,] — I  consider  it  to  be  efficient 
to  thrust  with. 

34M  Question.  Did  I  not  tell  you  at  the  time  of  the  exa- 
mination at  Amherstburgh,  of  which  you  have  testified, 
that  I  had  happened  to  have  the  sword  in  my  possession 
by  mere  accident,  and  not  with  the  design  of  using  it  for 
offence  or  defence  ? 

Upon  General  Sutherland  proposing  this  question,  the 
Court  declared  it  to  be  irrelevant,  and  forbade  his  propos- 
ing any  more  questions  for  this  witness  to  answer. 

It  was  then  proposed  by  the  Judge  Advocate  to  show 
by  Prince,  that  a  committee  of  the  Legislature  of  Michi- 
gan had  visited  the  place  at  which  General  Sutherland 
had  been  captured,  and  that  they  had  determined  it  to  be 
decidedly  within  the  territory  of  Upper  Canada. 

To  this  General  Sutherland  objected,  and  rose  for  the 
purpose  of  stating  his  objections.  But  this  was  refused 
him,  and  the  Court  ordered  to  be  cleared.  On  the  Court 
being  opened.  General  Sutherland  was  informed  by  the 
Judge  Advocate,  that  the  Court  had  decided,  that  the  pro- 
posed examination  of  the  witness  Prince,  should  not  be 
gone  into ;  though  General  Sutherland  then  consented  that 
it  might  be. 

[During  the  night,  immediately  after  my  capture,  it  had 
rained  incessantly,  and  covered  the  ice  at  the  head  of 
Lake  Erie,  and  in  the  vicinity  of  the  place  of  my  capture, 
with  water  to  the  depth  of  several  inches.  This  must  ne- 
cessarily have  obliterated  every  vestige  of  my  tracks  on 
the  ice,  as  I  had  travelled  over  such  spots  as  were  least  co- 
vered with  snow,  and  for  much  of  the  route,  over  places 
where  the  snow  had  been  entirely  driven  off  by  the  wind ; 
and  from  the  rotten  and  broken  state  of  the  ice  in  the  im- 
mediate neighborhood  of  the  place  of  my  capture,  on  the 
morning,  persons  could  not  have  approached  it,  or  have 
come  nigher  than  at  the  distance  of  five  or  six  miles.  This 
fact  was  known  to  Prince;  and  he  must  have  informed 
the  Courtj  that  I  would  be  able  to  establish  it,  in  case 


TESTIMONY    OF    CAPT.    GIUTY. 


127 


de  ;  and 
is  of  so 
\h  officer 
.  Kings- 
efficient 

the  exa- 
teslified, 
issession 
ng  it  for 

tion,  the 
3  propos- 
ir. 

to  show 
if  Michi- 
itherland 
i  it  to  be 

e  for  the 
}  refused 
he  Court 
d  by  the 

the  pro- 
not  be 

ted  that 

re,  it  had 
head  of 
capture, 
Imust  ne- 
:acks  on 
least  co- 
!r  places 
le  wind ; 

the  im- 

[,  on  the 

or  have 

s.    This 

Informed 

in  case 


they  went  into  an  examination  of  the  matter.  See  affida- 
vits of  John  Farmer  and  Benjamin  Crittenden  in  this  Ap- 
pendix.^ 

Thereupon,  the  witness.  Prince,  was  directed  to  with- 
draw, and  he  withdrew  accordingly. 


Prideaux  Girty,  Captain  in  the  Militia  of  the  Pro- 
vince of  Upper  Canada,  being  duly  sworn  on  the  holy 
Evangelists,  states  to  the  Court : 

That  on  the  4th  inst.  (4th  of  March,  1838,)  he  was  re- 
turning from  Pele  Island,  with  Colonel  Prince  and  a  man 
named  Haggerty — that  they  were  about  a  mile  and  a  half 
from  Big  Creek,  which  is  six  miles  below  Amherstburgh, 
Colonel  Prince  said — '■''that  there  were  two  objects  on  the 
ice''' — that  they  drove  towards  Amherstburgh,  perhaps 
the  distance  oi  a  mile — that  they  then  discovered  that  the 
two  objects  were  men — that  he  mentioned  to  Colonel  Prince 
that  he  suspected  they  were  persons  wishing  to  avoid  their 
guard,  they  (the  men  on  the  ice,)  being  entirely  below  the 
tisual  place  of  crossing,  and  recommended  that  they 
should  pursue  and  ascertain  who  they  were — that  they 
then  drove  a  short  distance  from  the  Canada  shore,  to- 
wards that  of  the  United  States;  and  then  turned  round 
and  drove  back  again,  having  concluded  to  go  up  to  An- 
derson's at  Hartly's  Point,  to  obtain  fresh  horses ;  and  as 
they,  (the  men,)  were  approaching  the  Canada  shore  they 
thought  they,  (the  men,)  would  be  upon  it  by  the  time  they 
returned  ;  and  that  if  they,  (the  men,)  were  not,  that  they 
might  then  pursue  them ;  but,  that  they  found  that  they, 
(the  men,)  were  so  near  the  shore,  and  meeting  two  sleighs, 
Colonel  Prince  asked  the  men  with  them  if  they  would  go 
out  tvith  them,  that  is  with  him  and  Mr.  Haggerty — that 
they  went  into  the  sleighs  and  drove  oflf  rapidly — that  he 
for  a  few  moments  halted  at  that  place  with  his  sleigh  ; 
arid  as  he  thought  he  discovered  the  persons  were  running 
he  drove  after  them — that  he  was,  perhaps,  at  the  distance 
of  a  quarter  of  a  mile  in  the  rear — that  the  distance 
of  a  mile  and  a  quarter,  or  not  more  than  a  mile  and 
a  half  from  the  Canada  shore,  Colonel  Prince  came  up 
with  the  persons  they  were  pursuing — that  he  perceived 


129 


TESTIMONY   OF   CAPT.    GIRTY. 


that  the  Colunel  at  the  moment  took  a  sword  from  the 
liands  of  the  largest  man  of  the  two,  whom  he  afterwards 
ascertained  to  be  the  Prisoner,  Mr.  Sutherland — that  Hag- 
gerty  went  up  to  the  smaller  man  and  took  his  sword; 
this  he,  also,  saw — that  Colonel  Prince  and  Haggerty 
with  the  two  men  then  returned — that  as  soon  as  they 
met  us,  the  Colonel  said,  "  Girty,  we  have  General  Suth- 
erland''— that  he,  witness,  then  immediately  said,  he 
knew  the  young  man  who  was  with  them,  having  seen 
him  before  at  Pontiac,  at  the  head  of  a  company  of  what 
they  called  the  Patriot  army — that  he  considered  the  dis- 
tance from  the  Canada  shore  nearest  to  where  Mr.  Suth- 
erland was  captured,  and  from  thence  directly  to  the  Uni- 
ted States  shore,  to  be  about  eight  miles — that  some  call 
it  ten  miles.     [The  distance  is  over  thirteen  miles.] 

That  on  tlie  19th  of  February,  he  attended  the  theatre 
at  Detroit,  and  there  saw  Mr.  Sutherland,  timt  being  the 
first  time  he  ever  saw  him  to  his  knowledge — that  on  his 
entering  the  theatre  he  saw  him  addressing  the  per- 
sons then  present,  encouraging  the  cause  of  the  Patriots, 
inviting  his  hearers  to  come  forward  for  the  relief  of  the 
oppressed  Canadians — that  such  were  the  terms  of  his  ad- 
dress (1.) — that  he,  witness,  left  the  theatre  before  the 
usual  time  of  their  dismissal — that  next  morning  he  went 
to  Pontiac ;  and  from  thence  to  Ann  Arbor ;  and  from 
thence  to  Ypsilanti — that  he  then  went  to  Amherstburgh, 
and  then  returned  immediately  lo  Monroe  in  Michigan, 
where,  on  Friday  evening,  the  23d  of  February,  he  saw 
Mr.  Sutherland — that  evening  there  was  a  number  of  the 
persons  calling  themselves  Patriots,  in  the  taverns  of  the 
village — that  the  next  morning  he  saw  Mr.  Sutherland  in 
the  street — that  w^itness  immediately  left  the  place  and 
proceeded  towards  Amherstburgh,  following  up  the  rear 
of  the  Patriot  army,  until  they  crossed  to  Fighting  Island, 
w^hen  he  returned  to  Gibralter  and  crossed  the  river  to 
Amherstburgh,  where  he  gave  information  of  what  he 
saw  to  Colonel  Maitland — that  he  did  not  again  see  Mr. 
Sutherland,  until  he  was  captured  on  the  ice — that  on  the 
morning  of  the  5th  inst.  (March,  1838,)  he  went  with 
Colonel  Prince  and  Major  Lachlan  to  the  fort,  [Maiden,] 

(1.)  This  is  all  fabrication. 


w 
C( 

ti( 
m 
tU 


do( 
CI 


fi 


TESTIMONV    OF    CAPT.    GIRTV. 


129 


rom  the 
ervvaids 
at  Hag- 
sword ; 
aggerly 
IS  they 
ttl  Suth- 
said,  he 
ng  seen 
of  what 
the  dis- 
r.  Suth- 
he  Uni- 
)me  call 

s.] 

theatre 
sing  the 
it  on  his 
he  per- 
Patriots, 
f  of  the 
"  his  ad- 
fore  the 
le  went 
from 
itburgh, 
jchigan, 
he  saw 
of  the 
of  the 
land  in 
ice  and 
e  rear 
Island, 
iver  to 
hat  he 
e  Mr. 
on  the 
It  with 
Iden,] 


when  Mr.  Sutherland  was  brought  before  them — that  he, 
Colonel  Prince,  then  asked  him  some  questions,  and  cau- 
tioned him  particularly  not  to  say  any  thing  that  would 
militate  against  him — that  Mr.  Sutherland  said — "  Gen- 
tlemen, I  will  tell  you  frankly :"  and  staled — "  that  he 
had  been  on  Navy  Island — and  was  second  in  command 
at  that  place — that  he  had,  at  a  certain  date,"  which  he 
does  not  now  recollect, "  left  Navy  Island  and  came  up  to 
Cleveland,  and  from  that  thence  up  to  Gibralter  in  Michi- 
gan, nearly  opposite  Amherstburgh — that  Mr.  Suther- 
land, also  confessed  that  he  was  with  the  Patriots  with  a 
scow  or  boat,  of  which  they  had  four  or  five,  on  the  night 
of  the  eight  of  January — that  he  had  the  direction  of 
them — that  there  had  been  some  disagreement  among 
them  as  to  who  should  command — that  he,  witness,  then 
stated  that  he  saw  those  boats  come  up  to  the  corner  of 
of  Bois  Blanc  Island,  and  that  he  saw  two  discharges  of 
cannon  which  took  place  from  the  boats — that  Mr.  Suther- 
land had  further  stated  on  his  examination  at  Amherst- 
burgh— "  that  he  had  landed  on  the  morning  of  the  ninth 
of  January,  on  Bois  Blanc  Island,  at  the  head  oi  fifty- 
three  men. 

At  this  part  of  the  examination,  the  hour  of  4  o'clock 
P.  M.  having  arrived,  the  President  adjourned  the  Court 
till  10  o'clock  of  the  next  day. 


SIXTH  DAY. 


Wednesday,  March  21,  1838. 


The  Court  met  pursuant  to  adjournment.  Present  the 
same  members  as  before. 

Girty  was  again  called  by  the  Judge  Advocate,  who 
continued  the  direct  examination. 

The  copy  of  the  examination  of  the  Prisoner,  at  Am- 
herstburgh, was  here  put  into  the  hands  of  the  witness, 
Girty.  He  states  that  the  same  was  taken  at  Amherst- 
burgh in  his  presence — that  Colonel  Prince  read  it  over 
to  Mr.  Sutherland,  and  asked  him  if  it  was  correct,  and 


130 


TESTIMONY    OF   CAPT.    GIRTV. 


that  he  lulmitted  that  it  was(l.) — tlmt  he,  witness  was 
one  of  the  magistrateii  attending  upon  that  occasion  ;  and 
that  his  name  at  the  foot  of  the  paper,  in    hin  signature. 

The  Court.  [By  Colonel  Kingsmill.]  How  long  have 
you  Mvcd  in  the  Western  District  of  Upper  Canada;  and 
are  you  acijuainted  with  the  country  about  Amherstburgh  ? 
If  so,  slate  what  you  know  about  it. 

Answer.  I  was  born  in  the  township  of  Maiden,  in  the 
Western  District  of  Upper  Canada,  within  two  miles  and 
a  quarter  of  Amherstburgh  ;  and  have  lived  there  for 
about  thirty  years  of  my  life.  I  am  well  acquainted  with 
the  coast  along  from  Amherstburgh  to  Point  Pole,  and  in 
particular  that  part  about  two  and  a  half  miles  below 
where  I  live,  colled  Bar  Poiiit  ;  also,  called  Ilartly^s 
Point,  which  is  the  nearest  point  on  the  Canada  shore  to 
the  place  where  Mr.  Sutherland  was  taken.  The  nearest 
j)lace  on  the  United  States  shore,  is  Point  Mouillce.  To 
the  best  of  my  belief,  and  to  be  withi7i  limits,  I  state  the 
distance  from  ivhere  Mr.  Sutherland  was  captured  to  Point 
Mouillec,  at  four  miles  and  a  half;  and  also  that  it  is 
usually  said  to  be  about  eiglt  miles  from  shore  to  shore. 
I,  also,  again  state  that  the  distance  from  the  Canada  shore 
to  where  Mr.  Stitherland  was  capttcred  to  be  within  a  mile 
and  a  half. 

[In  his  direct  examination,  Girty  says,  that  the  place 
where  I  was  "  captured  was  not  more  than  a  mile  and  a 
half  from  the  Canada  shore."  This  he  repeats  in  his 
answer  to  the  cross-examination  by  the  Court.  He,  also, 
says  in  his  direct  examination — "that  at  the  place  of 
my  capture  he  considered  it  to  be  about  eight  miles 
from  shore  to  shore."  But,  also  says,  "  that  it  is 
called  by  some  ten  miles."  In  his  answer  to  the  cross- 
examination  by  the  Court  he  says,  "  it  is  usually  slated  to 
be  about  eight  miles  from  shore  to  shore."  He,  also,  says, 
"  that  to  the  best  of  his  belief,  it  is  four  miles  and  a  half 
from  the  place  where  I  was  captured  to  the  shore  of  the 
United  States,  at  Point  Mouillee."  Now,  observe  how 
these  statements  tally.  If  the  distance  across  is  ten 
miles,  as  Girty  said,  some  call  it,  and  I  was  four  and  a 
,half  miles  from  our  shore,  then  I  was  captured  five  and  a 

(1.)  See  note  16  to  the  testimony  deposed  by  Prince. 


half  miles 
miles,  as  h 
as  he  swej 
four  and  u 
the  distnncl 
shore,  inste| 
of  these  stj 
have  been 
boundary  111 
two  countrl 
one  mile  fri 
Hartly's  Po 
if  it  was  trii 
and  a  half 
at  a  distant 
point,  and  a 
ted  States.] 

Cross-Ex/ 
Sutherland. 

\st  Questii 
capture  me  ? 

Answer.  1 
in  the  afternc 

2d  Questio 
serve  a  schoo 
what  distance 
my  capture  ? 

Amwer.  I 
tance,  as  I  sh 
that. 

^d  Question 
in  the  ice,  ne 

Answer,     j 

4:th  Questic 
between  Poir 

Ansiver.     I 

5tk  Questic 
er  you  have 
island  bear  fi 
schooner  ? 


CROSS-EXAMINATION    OF    CAPT.    GIUTY. 


131 


linlf  miles  from  the  Canada  shore,  instead  of  one  and  a  half 
miles,  as  he  swears.  If  the  distance  across  is  eight  miles, 
as  he  swears,  he  understood  it  to  be,  and  I  was  captured 
four  and  a  half  miles  from  our  shore,  I  was  captured  at 
the  distance  of  three  and  a  half  miles  from  the  Canada 
shore,  instead  of  one  and  a  half,  as  he  swears.  Either 
of  these  statements  establish  the  place  of  my  capture  to 
have  been  within  the  lines  of  the  United  Stales  ;  for,  the 
boundary  lino  as  established  at  that  place,  between  the 
two  countn'r's,  is  located  at  the  distance  of  only  about 
one  mile  from  the  Canada  shore.  The  distance  from 
Hartlv's  Point  to  Point  Mouillee  is  thirteen  miles ;  and 
if  it  was  true  that  I  was  captured  at  a  distance  of  four 
and  a  half  miles  from  Point  Mouillee,  I  was  then  taken 
at  a  distance  of  eight  and  a  half  miles  from  Hartly's 
point,  and  all  of  seven  miles  within  the  lines  of  the  Uni- 
ted States.] 


Cross-Examination  of  the  witness  Girty,  by  General 
Sutherland. 

1st  Question.  At  what  hour  of  the  day  did  your  party 
capture  me  ? 

Answer.  \  think  it  was  between  four  and  five  o'c!ock 
in  the  afternoon. 

2d  Question.  At  the  time  of  my  capture  did  you  ob- 
serve a  schooner  frozen  in  the  ice,  in  that  vicinity  ?  If  so, 
what  distance  were  you  from  the  schooner  at  the  time  of 
my  capture  ? 

Answer.  I  saw  a  schooner  frozen  in  the  ice,  at  the  dis- 
tance^  as  I  should  judge,  of  about  two  miles^  or  very  m  r 
that.  .   r 

^d  Question.  Did  you  see  any  other  schooner  frozen 
in  the  ice,  near  where  my  capture  took  place  ? 

Answer.     I  did  not. 

4:th  Question.  Was  there  a  travelled  road  on  the  ice 
between  Point  Mouillee  and  Hartly's  Point  ? 

Ansioer.     Not  in  that  direction.        •  * 

5tk  Question.  Did  you  see  an  island  near  the  schoon- 
er you  have  mentioned  ?  If  so,  what  direction  did  the 
island  bear  from  it ;  and  how  far  distant  was  it  from  the 
schooner? 


flw 


132 


CROSS-EXAMINATION   OF 


Aiiswer.  \  did  not  see  an  island.  There  is  no  island 
7ieu  ,r  the  schooner  than  Bois  Blanc,  or  Sugar  Island, 
both  of  luhich  lie  at  a  distance  from  where  the  schooner 
then  was  of  more  than  four  miles. 

Gth  Question.  Is  not  the  island  called  the  West  Sis- 
ter, to  be  seen  from  where  the  schooner  lay,  or  from  thd 
Canada  shore  three  miles  below  Hartly's  Point  ? 

Ariswer.  In  a  very  clear  day  you  can  discover  it  with 
the  eye.  It  is  not  less  than  15  miles  distant  from  Hart- 
Ij  s  Point. 

[The  true  distance  from  Hartly's  Point  to  the  island 
called  the  West  Sister,  is  about  15  miles,  in  a  south-west- 
erly direction.  In  clear  weather,  it  can  be  very  plainly 
seen  from  Hartly's  Point,  or  from  any  place  within  three 
miles  below,  as  I  observed  on  passing  along  the  Canada 
shore,  on  my  way  to  Toronto,  the  day  after  my  capture.] 

7th  Question.  After  you  started  in  pursuit  of  me,  what 
war,  your  course  on  the  ice  ?  and  what  length  of  time 
elapsed  before  I  was  overtaken  by  Prince  and  his  party 
after  he  had  left  the  Canada  shore  ? 

Answer.  It  was  nearly  in  a  southerly  direction.  I 
think  it  could  not  be  more  than  ten  minutes  from  the  time 
Colonel  Prince  got  into  the  sleigh  he  met,  intil  he  over- 
took Mr.  Sutherland. 

Sth  Question.  Was  I  running,  or  walking,  when  you 
may  suppose  I  must  have  seen  Prince  and  the  sleighs  in 
pursuit  ? 

Answer.  I  was  under  the  impression  that  Mr.  Suther- 
land was  running,  and  tha^  he  had  run  for  more  than  a 
quarter  of  a  mile.  .  u  .^ 

[In  his  direct  examination,  it  will  be  seen  that  Girty, 
(as  well  as  Prince,)  swears  that  I  was  going  towards  the 
Canada  shore ;  and  upon  his  cross-examination,  that  I 
was  iravelb'ug  in  a  southerly  direction.  N'»w,  from  the 
place  where  either  Prince  or  Girty  locate  the  gvound  of 
my  capture,  the  Canada  shore  is  situated  directly  to  the 
north ;  and  the  situation  of  Portage,  (Lower  Sandusky,)  is 
neiirly  as  direct  to  the  south.  Sandusky,  proper,  lies  to 
to  the  east  of  south. 

Again ;  in  his  direct  examination,  as  it  will  be  seen, 
Girty  testified,  ''  that  he  had  halted ;  and  that  he  had  then 


CAl'T.     GIRTY. 


133 


)  islaiid 
Island, 
chooner 

est  Sis- 
rom  thd 

it  with 
in  Hart- 

i  island 
th-west- 

plainly 
in  three 

Canada 
apture.] 
16,  what 

of  time 
lis  party 

ction.  I 
the  time 
he  over- 
hen  you 
[eighs  in 

Suther- 
than  a 

[t  Girty, 
irds  the 

that  I 
rom  the 
lound  of 

to  the 
fsky,)  is 

lies  to 

seen, 
id  then 


drove  after  me,  as  he  thought  he  discovered  that  I  was 
running" — [towards  the  Canada  shore  ?)  In  his  cjss- 
examination,  he  also  repeats,  "  that  he  was  under  th(i  im- 
p>  essjion  that  I  was  running" — and  had  continued  to  do 
s(>  for  so.ue  distance.] 

9f,h  Question.  At  whose  house  in  Monroe,  did  you  see 
me  on  the  Friday  evening  you  have  mentioned  in  your 
direct  examirntion? 

Ansicer.  It  was  at  a  public  inn.  V/Iiose,  I  do  not  re- 
member. 

\{ith  Question.  Did  you  say  you  followed  the  Patriot 
army  from  Monroe  to  Fighting  Island  ?  If  so ;  did  you 
then,  or  after,  see  me  with  the  Patriot  army;  or  do  you 
know  of  my  having  any  connexion  with  them  after  you 
saw  me  at  Monroe,  on  the  occasion  you  have  mentioned 
in  your  direct  examination  ? 

Answer.  I  did  follow  the  Patriot  army  from  Monroe 
to  Fighting  Island ;  but  I  did  not  see  Mr.  Sutherland 
with  them;  and  I  do  not  know  that  he  had  any  connexion 
with  the  Patriot  army  after  I  saw  him  at  Monroe. 

ll^A  Question.  At  any  time  on  the  samo  day  and  be- 
fore my  capture,  did  you  observe  me  meet  a  sleigh  go- 
ing from  the  Canada  shore  to  that  of  the  United  States — 
and  the  sleigh  to  stop  with  me  for  any  time  ? 

Answer.    No. 

\2th  Question.  At  the  time  of  my  capture,  was  it  a 
clear  sun-shiny  day  ? 

Answer.     It  was  a  tolerably  clear  or  fair  afternoon. 

13?A  Question.  At  the  time  of  my  examination  at  Am- 
herstburgh,  did  I  not  tell  you  that  at  some  time  in  the 
early  part  of  February  last,  I  had  dissolved  my  connexion 
with  the  Patriots  of  Upper  Canada,  as  I  then  believed  I 
had  been  deceived  as  to  the  intentions  of  thi^  people  of 
the  Province ;  and  that  I  had  made  a  formal  resignation 
of  my  command,  and  made  the  same  known  in  Michigan. 
That  I  had  determined  to  write  a  book  for  publication, 
giving  a  true  account  of  the  proceedings  of  the  Patriots 
of  Upper  Canada ;  or  words  to  that  effect  ? 

Answer.  After  the  statement  was  made  and  signed  by 
the  magistrate,  Mr.  Sutherland  spoke  to  this  effect:  [Af- 
ter the  examination,  as  it  was  called,  was  shown  to  me, 

12 


!.| 


i^i 


w 


134 


CROSS-E\AMINATION    OF    CAPT.    GIRTY. 


m 


I  m 


I  had  no  farther  conversation  with  either  Prince,  Lach- 
lan,  or  Girty.  or  in  their  presence.]  "  That  he  had  re- 
signed ;  that  he  was  going  east  to  write  a  book  ;  that  if 
he  knew  how  he  stood  with  us  he  viight  be  useful  to  us  /" 
[A  vile  perversion  of  the  fact.]  Which  left  an  impression 
on  my  mind  that  he  wished  to  be  Queen's  evidence.  [See 
note  to  Prince's  testimony  on  the  same  matter.]  Also, 
to  the  effect  that  he  had  been  deceived  as  to  the  inten- 
tions of  the  people  of  Upper  Canada. 

\^th  Question.  At  the  time  of  my  examination  at  Am- 
herstburgh,  in  answer  to  an  inquiry  from  Colonel  Prince, 
did  I  tell  him  in  yonr  presence,  that  I  had  had  no  connex- 
ion whatever  with  the  persons  who  had  been  in  ^rms  on 
Fighting  Island,  or  on  Pel6  Island.  That  I  was  not 
aware  of  having  ever  seen  any  of  the  persons  said  to  have 
been  on  Pel6  Island,  except  Captain  Van  Rensselaer. 
That  I  had  never  in  my  life  been  on  Pele  Island  ?  Or, 
have  you,  at  any  time,  heard  me  mal<:e  such  a  statement  ? 
Anstoer.  I  do  not  know  that  Crloi  Prince  ever  made 
any  such  inquiries  of  Mr.  SutherL  ui!  ,  nor  do  I  recollect 
that  any  one  else  put  any  such  questions  to  him  at  the 
time  of  the  examination.  I  think  that  while  he  was  on 
the  ice,  after  his  capture,  I  asked  him  if  he  had  not 
been  on  Fighting  Island ;  and  he  answered,  "  No."  I 
asked  him  then  whether  he  knew  the  persons  who  had 
been  shot  on  Pel6  Island.  He  said  that  he  did  not  know 
any  other  than  Captain  Van  Rensselaer. 

[I  never  spoke  to  or  exchanged  a  word  with  Girty,  un- 
til I  was  brought  before  him  in  the  officers'  guard-room 
at  Fort  Maiden.  Nor  did  he  speak  to  me,  or  m?.ke  any 
inquiries  of  me  on  the  ice.] 

\5th  Question.  Did  I  make  any  statemt.  *  ':'  /acts  at 
the  time  of  my  examination  at  Amherstbm  ^  \\  zh  are 
not  contained  in  the  record  of  that  examinatiu  i  now  in 
court,  and  to  which  you  have  sworn  ? 

Major  Gurnett,  There  is  no  record  of  an  examination 
in  Court. 

Captain  Powel.  It  is  no  examination ;  but  p.  confes- 
sion. 

General  Sutherland.    It  has  been  sworn  to  as  an  ex- 


a 

fes 
all 
Co 


vW 


2,  Lach- 
1  had  re- 
;  that  if 
I  to  us  /" 
ipression 
ice.  [See 
.]  Also, 
iie  inten- 

m  at  Am- 
;1  Prince, 

0  connex- 
).  ''rms  on 

was  not 
id  to  have 
ensselaer. 
nd  ?  Or, 
;atement  ? 
ever  made 

1  recollect 
lim  at  the 
le  was  on 
I   had  not 

'No."  I 
who  had 
not  know 

irty,  un- 
lard-room 
[make  any 

'  lacts  at 
h  jh  are 
1  now  in 

imination 

IP.  confes- 

las  an  ex- 


TESTIMONY    OF    MATTHEW    HAYES. 


135 


araination  ;  and  it  has  been  called  such,  by  the  Court  ever 
since  its  production. 

Lt.  CoL  Broion.  It  has  not.  No  body  has  called  it  an 
examination. 

Col.  Kingsmill.  Mr.  Sutherland,  ihis  paper  is  not  re- 
garded by  the  Court  as  a  record  of  an  examination,  but 
merely  as  a  memorandum  of  your  confessions. 

General  Sutherland.  Then,  if  the  paper  be  considered 
a  mere  memorandum  of  the  matters  it  is  alleged  I  con- 
fessed, I  have  the  right  to  have  all  those  confessions;  and 
all  that  I  said  at  the  time,  I  have  the  right  to  show  to  the 
Court  by  this  witness. 

Col.  KiT.gsmill.  You  can  show  nothing  now,  different 
from  what  the  paper  contains.  If  the  paper  did  not  con- 
tain all  that  you  had  stated,  it  was  your  time  to  have  ob- 
jected when  it  was  read  to  you  at  Amherstburgh,  by  Col. 
Prince. 

Major  Gurnett.  I'll  not  consent  that  the  Prisoner  puts 
any  more  questions  to  this  witness,  concerning  that  paper 
or  his  own  stories. 

The  President,  Col.  Jarvis.  This  question  cannot  be 
put ;  and  as  we  have  decided  this  to  be  irrelevant,  you 
can  put  no  more  questions  to  this  witness. 

Judge  Advocate.  Captain  Girty,  you  may  stand  aside. 
Thereupon  the  witness  withdrew. 


Matthew  Hayes,  Late  a  Sergeant  in  Her  Majesty's 
le>th  Regt.  of  foot,  being  duly  sworn  on  the  holy  Evan- 
gelists, states  to  the  Court : 

That  he  went  to  Navy  Island  on  the  twenty-first  day  of 
December,  1837 — that  after  he  got  there,  William  Lyon 
Mackenzie,  asked  him  "  what  brought  him  there" — that 
he  told  him  he  came  for  the  purpose  of  seeing  the  Island 
—that  Mackenzie  then  told  him  that  he  could  not  leave 
the  Island — that  he  saw  General  Sutherland  on  the  beach 
when  he  landed — that  there  was  a  Mr.  Gorham,  whom 
he  understood  came  from  New-Market  in  Upper  Canada 
— that  he,  (Mr.  G.)  told  witness,  that  he  came  from  New- 
Market — that  Mr.  Gorham  actei  as  Aid-de-Camp  to  Ge- 
neral Van  Rensselaer — that  he|saw  General  Sutherland  on 
Navy  Island,  from  time  to  time,  from  the  21st  to  the  28th 


136 


TESTIMONY    OF    MATTHEW    HAYES. 


or  29th  of  Dec. — that  he  cannot  be  positive  which — that 
he  was  in  the  capacity  of  second  in  command  of  the  Pa- 
triot forces — that  he  was  Brigadier  General — that  he  saw- 
General  Sutherland  leave  Navy  Island — that  it  may  have 
been  on  the  28th  or  29th  of  Dec.  but  was  not  positive  of 
the  day — that  General  Sutherland  carried  a  cavalry  sword 
in  the  usual  form — that  there  were  no  people  in  uniform 
on  the  island — that  they  were  in  general,  armed  with 
guns,  swords,  pistols  and  pikes — that  some  of  the  men 
had  charge  of  cannon — that  General  Sutherland  addres- 
sed the  men  on  the  Island  the  day  he  left  it ;  and  gave 
up  the  command  he  held  there  to  Major  Vreeland,  who 
took  his  place — that  in  his  address  to  th„  men,  General 
Sutherland  said,  "  they  were  embarked  in  a  glorious 
cause,"  and  he  *'  implored  the  God  of  battles  to  direct 
and  prosper  them." 

The  Court.  [By  Lt.  Col.  Brown.]  Have  you  before 
seen  Mr.  Sutherland  since  he  left  the  island  ?  If  so  ; 
state  when. 

Answer.  I  have  not  seen  him  since  he  left  Navy 
Island,  until  I  came  into  Court  here. 

The  Court.  [By  Lt.  Col.  Brown.]  Did  you  see  any 
other  British  subjects  on  Navy  Island,  whose  names  you 
did  not  know  ? 

Answer.  There  were  forty  or  fifty  persons  on  Navy 
Island  whom  I  understood  were  British  subjects.  Many 
of  them  told  me  so  themselves.  /  have  had  opportunities 
of  conversing  with  them^  and  I  have  no  doubt  of  their  be- 
ing British  subjects. 

[All  this  was  put  into  the  mouth  of  the  witness  by  Lt. 
Col.  Brown  and  Major  Gurnett.  I  objected  to  the  testi- 
mony, (if  testimony  it  could  be  called,)  but  my  objec- 
tions were  overruled.  What  puzzled  me  the  most  was, 
to  understand  how  Hayes  could  know  any  person  to  be  a 
British  subject  without  ever  knowing  his  name.] 

The  Court.  [By  Col.  Kingsmill.J  Did  they  form  a 
part  of  the  hostile  force  on  Navy  Island  ? 

Answer.     Yes. 

The  Court.  [By  Major  Gurnett.]  Do  you  recollect  a 
man  named  Switzer  who  was  on  the  island  ? 

Answer.    I  do  not. 


CROSS-EXAMINATION    OF    MATTHEW    HAYES. 


137 


h— that 
tlie  Pa- 
he  saw- 
ay  have 
sitive  of 
y  sword 
uniform 
ed  with 
he  men 
addres- 
id  gave 
id,  who 
General 
glorious 

0  direct 

1  before 
If  so ; 

ft   Navv 

see  any 
nes  you 

Navy 
Many 
tunities 
heir  be' 

by  Lt. 

!  testi- 
objec- 
»st  was, 
to  be  a 

form  a 


)llect  a 


Cross-Examination  of  the  witness  Hayes,  by  General 
Sutherland. 

1st  Question.  Did  you  ever  see  me  in  conversation 
with  William  Lyon  Mackenzie  on  Navy  Island  ? 

Answer.     Yes. 

2d  Question.  At  what  place  on  the  island ;  and  what 
was  the  subject  of  conversation  ? 

Answer.  I  saw  Mackenzie  in  conversation  with  Gene- 
ral Sutherland,  at  the  place  called  Head -Quarters;  but 
the  subject  of  the  conversation  I  know  not. 

3<i  Question.  Did  you  see  me  on  Navy  Island  after  the 
burning  of  the  steamer  Caroline  ? 

Answer.     No. 

^th  Question.  Where  on  Navy  Island  did  you  first  see 
me?  Were  there  any  peculiar  circumstances  in  the 
meeting?     If  so;  state  them. 

Answer.  I  first  saw  General  Sutherland  on  the  beach 
at  the  usual  place  of  landing,  near  Head-Quarters.  As 
to  particular  circumstances,  there  were  none  that  I  know 
of. 

5th  Question.  Where  on  Navy  Island  did  you  first 
enter  into  conversation  with  me  ;  and  what  was  the  sub- 
ject of  that  conversation  ? 

Answer.  My  first  conversation  with  General  Suther- 
land was  on  the  beach  near  Head  Quarters.  The  sub- 
ject of  the  conversation  I  do  not  recollect. 

6th  Question.  Who  was  in  command  of  Navy  Island 
while  I  was  there  ? 

Answer.  General  Van  Rensselaer.  But  he  was  some- 
times absent,  and  then  General  Sutherland  commanded. 

7th  Question.  Do  you  know  to  what  country  General 
Van  Rensselaer  belonged  ?  or,  do  you  know  that  he  was 
a  British  subject  ? 

Answer.  I  understood  that  he  was  an  American  ;  that 
is,  a  citizen  of  the  United  States. 

8th  Question.  Were  there  any  batteries  on  Navy  Isl- 
and at  the  time  you  say  I  left  it  ? 

Answer.  There  was  one  on  the  western  extremity  of 
the  island. 

9th  Question.  Do  you  know  of  your  own  knowledge 
that  General  Van  Rensselaer  was  absent  from  Navy  Isl- 

12* 


m 


^ 


138 


CROSS-EXAMINATION    OF 


and,  between  the  21st  and  29th  of  December  last  ?  If 
so  ;  do  you  know  that  the  absence  of  General  Van  Rens- 
selaer was  known  to  me  at  the  time  ?  and  if  so  ;  on  what 
days  of  the  said  month  of  December  was  General  Van 
Rensselaer  absent  from  the  island  ? 

Answer.  He  was  absent  to  my  knowledge.  I  also 
heard  General  Sutherland  say  he  was  absent.  I  stopped 
in  the  quarters  of  General  Sutherland,  and  thus  I  came 
to  know  it.     I  cannot  well  remember  the  particular  days. 

At  this  part  of  the  cross-examination,  the  hour  of  four 
o'clock  P.  M.  having  arrived,  the  President  adjourned  the 
Court  till  ten  o'clock  of  the  next  day.      :      ,      '  ,i.  . 


W( 

on 

of 
ani 
bot 
Pr( 


SEVENTH  DAY. 


roli 


Thursday,   March  22,  1838. 


roceed  when 
tate  of  New- 


The  Court  met  pursuant  to  adjournment.  Present  the 
same  members  as  before. 

The  Cross-Examination  of  the  witness  Hayes,  by  Gen- 
eral Sutherland,  continued. 

10?A  Question.  To  what  shore  did  I 
1  left  Navy  Island?  To  the  shore  of  the 
York,  or  of  Canada  ?  ., 

Answer.     To  the  shore  of  New- York. 

Wtk  Question.  Did  you  learn  from  Willian  Lyon 
Mackenzie,  while  on  Navy  Island,  that  he  was  on  un- 
friendly terms  with  me,  before,  or  at  the  time  I  left  ? 

Answer.     I  did  not. 

\2th  Question.  Did  you  learn  from  me,  while  I  was 
on  Navy  Island,  that  I  was  unfriendly  to  Mr.  Mackenzie  ; 
or,  that  I  had  any  difference  with  him  ?  ,    , 

Answer.     I  did  not. 

VMh  Question.  Did  you  know  that  William  Lyon 
Mackenzie  had  said  to  me  before  I  left  Navy  Island,  that 
he,  Mr.  Mackenzie,  wished  me  to  go  off  from  the  island  ? 

Answer.     I  did  not.  ,.,  ,      ..   .,,. 

\^th  Question.    How,   or  by  whom,  or  from  whom, 


MATTHEW     HAYES. 


139 


3t?       If 

I  Rens- 
n  what 
•al  Van 

I  also 
stopped 
I  came 
ir  days, 
of  four 
ned  the 


jent  the 

Dy  Gen- 

i  when 
f  New- 


Lyon 
on  un- 
ft? 

I  was 
kenzie  ; 


Lyon 
Id,  that 
Island  ? 

Iwhom, 


were  the  provisions  and  military  stores  used  by  the  force 
on  Navy  Island,  procured  or  furnished? 

Answer.  I  understood  they  were  furnished  by  citizens 
of  the  United  States.  They  were  brought  to  Navy  Isl- 
and from  the  United  States  shore.  They  were  brought 
both  by  citizens  of  the  United  States  and  by  Canadians. 
Provisions  were  so  brought  to  the  island  during  the  lime 
General  Sutherland  was  there.  /      .  ; 

I5th  Question.  What  Canadians  brought  provisions  to 
Navy  Island  while  I  was  there  ? 

Ansioer.  There  was  one  M'Carthy,  and  one  Coron-^n, 
who  acted  as  boatmen.  M'Carthy  belonged  to  the  Pa- 
triots on  Navy  Island,  and  Coronan  belongec  to  the  Ca- 
roline steamer.     He  told  me  so  himself. 

[The  last  sentence  was  put  into  the  witness's  mouth 
by  Major  Gurnett.  M'Carthy  was  a  citizen  of  the  United 
States,  and  a  native  of  the  State  of  Pennsylvania,  as  I 
happen  to  know.  Coronan,  I  know  nothing  of — there 
may  have  been  such  a  man  with  the  Patriots,  and  there 
may  have  not.] 

16«A  Question.  I  understood  you  to  state,  yesterday, 
that  you  did  not  know  the  names  of  any  of  the  persons 
at  Navy  Island,  you  supposed  to  be  British  subjects,  ex- 
cept two.     How  do  you  account  for  the  discrepancy  ? 

Answer.  I  could  not  bring  them  to  recollection  yes- 
terday. 

11  tk  Question.  Who  did  the  men,  you  have  mentioned, 
inform  you,  furnished  the  provisions  which  were  brought 
to  Navy  Island  ? 

Answer.  I  do  not  know  who  furnished  the  provisions. 
The  men  told  me  they  took  them  in  at  Schlosser. 

\Sth  Question.  Did  you  say  you  came  to  Navy  Island 
not  with  the  intention,  nor  for  the  purpose  of  joining  the 
Patriot  forces  there  at  the  time ;  and  that  you  was  detain- 
ed there  against  your  will ;  and  do  you  mean  to  testify 
that  you  went  upon  Navy  Island  merely  to  gratify  your 
curiosity  ;  and  did  you  consider  yourself  a  prisoner  while 
there,  detained  against  your  will  ? 

Aiiswer.  I  went  to  Navy  Island  for  the  purpose  of  not 
joining  the  party  ;  General  Sutherland  told  me  not  to  make 
myself  uneasy,  as  I  might  stop  with  him  in  his  quarters  ; 


*^ 


% 


'•ii 


140 


CROSS-EXAMINATION  OF 


I  do  mean  to  say  that  I  was  detained  there  against  my 
will.  I  do  mean  to  say  that  I  went  to  Navy  Island 
merely  to  gratify  my  curiosity.  I  did  consider  myself  a 
prisoner  there,  not  being  allowed  to  return  in  the  boat, 
there  being  a  guard  on  the  beach,  who  had  orders  from 
General  Sutherland,  Mr.  Gorham,  and  Mr.  Mackenzie, 
to  allow  no  person  to  leave  the  Island  without  their  leave. 
[All  these  answers,  save  the  first,  the  witness  was  helped 
to  by  Colonel  Kingsmill,  Lt.  Col.  Brown  and  Major  Gur- 
uett.] 

I9th  Question.  When  did  witness  leave  Navy  Island  ; 
and  under  what  circumstances  ? 

Answer.  I  left  Navy  Island  on  the  4th  of  January,  in 
the  absence  of  Mr.  Mackenzie,  by  obtaining  leave  of 
General  Van  Rensselaer ;  which  I  did  on  condition  of  re- 
turning that  evening.  General  Van  Rensselaer  told  me 
to  go  to  Captain  Harper,  and  obtain  a  pass  from  him  ; 
which  I  did,  and  took  it  to  General  Van  Rensselaer,  and 
he  approved  of  it. 

20th  Question.  Did  you  hold  any  rank,  or  did  you  ex- 
ercise any  office  on  Navy  Island  after  I  left  there ;  or 
were  you  then  and  there  ranked  above  a  common  senti- 
nel ?  ■'■    '■'  ''■''     'V  '■;  ij'»'-' iM.   ■    !'"•'   sjinvl--;  *,-v,j.  '    ■: 

Answer.  General  Sutherland  said,  that  I  was  to  act  as 
Adjutant,  and  I  did  so  through  fear ;  and  I  continued  to 
act  in  that  office  until  a  friend  of  Major  Vreeland  came  to 
the  Island,  who  was  appointed  to  the  office ;  I  being  dis- 
placed, in  consequence  of  not  acting  efficiently. 

2lst  Question.  Did  I  ever  make  any  threat  to  you  on 
Navy  Island  ?  If  so;  what  was  it — and  who  was  present  ? 

Ansioer.    No. 

22rf.  Question.  Are  you  a  prisoner  at  this  time  in  this 
Province,  charged  with  the  commission  of  high  treason, 
or  of  any  other  offence  against  Her  Majesty  the  Queen 
of  Great  Britain  ?  If  so  ;  have  you  been  promised,  or  do 
you  expect  a  reprieve  or  pardon,  or  any  mitigation  of  the 
penalties  of  your  offence,  in  consideration  of  testifying  on 
this  trial  against  me  ;  or  have  you  directly  or  indirectly 
received  any  promise  of  benefit,  or  reward  for  so  testify- 
ing ;  or  do  you  expect  the  same  ? 

Answer.    I  am  a  prisoner ;  but  I  do  not  know  on  what 


MATTHEW    HAYES. 


141 


inst  my 
''  Island 
uyself  a 
he  boat, 
ers  from 
ckenzie, 
ir  leave. 
i  helped 
jor  Gur- 

Island  ; 

luary,  in 
eave  of 
in  of  re- 
told me 
)m  him  ; 
aer,  and 

you  ex- 
here ;  or 
m  senti- 

to  act  as 
nued  to 
came  to 
ing  dis- 

>  you  on 
•resent  ? 

I  in  this 
reason, 
Queen 
,  or  do 
of  the 
ing  on 
irectly 
testify- 
In  what 


charge ;  I  have  not  beon  promised  any  pardon  or  mitiga- 
tion of  penalty ;  nor  have  been  promised  any  fee  or  re- 
ward for  testifying  on  this  trial;  nor  do  I  expect  any. 

23d  Question.  Have  you  conversed  with  any  person 
or  persons  engaged  on  or  with  this  trial,  or  the  prosecu- 
tion of  this  suit  against  me  in  relation  to  what  you  should 
testify  on  this  trial,  or  in  relation  to  what  you  knew  of 
my  having  been  on  Navy  Island  ?  If  so  ;  name  the  per- 
son or  persons  with  whom  the  converijation  was  had,  and 
the  substance  thereof? 

Aiisioer.  Yes.  I  have  had  a  coversation  with  the  Judge 
Advocate.  He  said  General  Sutherland  was  a  prisoner  ; 
and  asked  me  if  I  knew  him.  I  said  I  did  know  him  to 
have  been  on  Navy  Island  part  of  the  time  I  was  there. 
He  asked  me  if  I  was  satisfied  to  give  evidc'^ce  against 
him  ;  and  I  said  I  was.  Nothing  else  passed  as  I  now  re- 
collect :  I  had  no  conversation  with  any  one  else  on  the 
subject. 

2\th  Question.  Was  it  usual  with  me  while  I  was  on 
Navy  Island,  to  detain  all  persons  who  came  there;  and 
were  those  prevented  from  leaving  without  the  consent  of 
General  Van  Rensselaer  ? 

Answer.  Not  in  all  cases.  Those  who  were  on  the 
Island  were  prevented  from  leaving  it  without  leave  of 
General  Van  Rensselaer,  General  Sutherland,  Mr.  Mac- 
kenzie or  Mr.  Gorham. 

25th  Question.  Were  there  any  other  persons  besides 
yourself  who  came  to  Navy  Island  from  motives  of  curio- 
sity, detained  there  while  you  was  there  ?  If  so  ;  were 
any  such  persons  appointed  to  offices  ?  and  was  such  a 
course  usual  ? 

Answer.  There  was  one  other  person,  who  said  he 
was  detained  against  his  Avill,  who  was  appointed  to  an 
office,  and  he  was  the  only  one  I  know  of.  That  person, 
I  think  Avas  named  Rodgers.  I  know  that  he  wanted  to 
go  off  but  was  prevented,  and  threatened  to  be  confinei! 
as  a  prisoner  if  he  attempted  to  get  away  from  the  Island. 

26M  Question.  Was  Rodgers  on  Navy  Island  at  the 
time  I  was  there  ? 

Answer.     Yes. 

21th  Question.     What  office  did  Rodgers  hold  ? 


142 


CROSS-FA'AMINATION  OF 


Answer.  Ho  was  told  thai  he  was  to  net  in  the  capa- 
city of  Scrp^oant ;  [and  tho  vvitni'ss  was  made  to  say,  by  the 
help  of  Colonel  Kint^smill,]  and  he  did  act  as  Sergeant ; 
and  he  was  compelled  to  do  so. 

2Sfk  Question.     To  what  country  did  Kodj^ers  Ijelonpf  ? 

Answer.  He  told  me  that  he  was  from  Uj)per  Canada, 
near  Chippewa.  I  have  to  add  that  I  have  no  knowledge, 
myself,  of  what  cotmtry  ho  was  a  native. 

29//t  Question.  You  stated,  as  I  have  understood  you, 
that  you  were  afraid  to  leave  Navy  Island.  What  rea- 
son had  you  to  be  afraid  ? 

Aiisiaer.  The  orders  on  Navy  Island  were,  that  anv 
person  leaving  the  island  without  permission,  vas  to  b^ 
iired  on,  if  they  did  not  return  when  ordered. 

30^A  Question.  Did  you  hear  me  say  while  on  Navy 
Island,  that  I  had  nothing  to  do  with  Mackenzie,  and  that 
I  would  have  nothing  to  do  with  him? 

[The  object  of  this  question  was  two  fold.  1.  It  was 
necessary  to  befog  the  Court,  as  well  as  the  witness,  as 
they  would  not  allow  him  to  answer  any  question  which 
had  a  weight  in  my  defence,  if  they  could  perceive  the 
bearing.  2.  It  was  essential  for  me  to  establish  the  nega- 
tive of  that  part  of  the  Charge  which  alleged,  "  that  I 
was  joined  to  William  Lyon  Mackenzie." 

Answer.     I  never  heard  him  say  so. 

^\st  Question.  Did  you  ever  apply  to  me  for  leave  to 
go  from  the  island  ? 

Answer.     I  do  not  recollect  that  I  did. 

32<i  Question.  Did  Mr.  Liiackenzie  exercise  any  mili- 
tary command  on  Navy  Island  while  I  was  there  ;  or  did 
he  assume  to  direct  or  command  any  person  who  acted  as 
officers  and  soldiers  on  Navy  Island,  while  I  was  there, 
to  your  knowledge  ? 

Ansv^dr.  Nothing  further  than  preventing  people  from 
leaving  the  island.  I  recollect  that  on  one  occasion,  Mr. 
Mackenzie  exercised  this  authority  when  General  Suther- 
land was  present.  [This  is  a  fabrication.]  I  think  Gen- 
eral Sutherland  must  have  been  close  enough  to  hear.  I 
was  one  of  those  who  wished  them  to  leave  the  Island. 

336?  Question.  Do  you  know  from  what  country  and 
from  what  place  the  arms  and  munitions  of  war  you  saw 


MATTHEW    HAYES. 


143 


he  capa- 
y,  by  the 
LTgeanl  ; 

hclonpf  ? 

Canada, 

owledgc, 

tood  you, 
'^hat  ren- 

that  any 
'as  to  bo 

on  Navy 
and  that 

1.  It  was 

itness,  as 
on  which 
ceive  the 
the  nega- 
^  "that  I 


eave  to 


iny  mili- 
or  did 
acted  as 
as  there, 

jle  from 
on,  Mr. 
Suther- 
nk  Gen- 
hear.  I 
sland. 
try  and 
you  saw 


on  Navy  Ishuui  were  brought,  or  by    whom   ti»ey  were 
brought  ?     If  so  ;  state. 

A?iswer.  I  saw  a  company  come  to  the  island,  consist- 
ing of  about  40  or  more  individuals,  Americans  and  Cana- 
dians, who  were  armed  with  muskets,  rifles,  swords  and 
pistols.  I  think  those  came  from  Sclilosser,  in  the  state 
of  New-York,  to  the  Island. 

[This  statement  to  which  I  objected,  as  it  was  not  an 
answer  to  my  question,  was  manufactured  for  the  witness 
by  one  of  the  members  of  the  court.] 

Here  the  Cross-Examination  of  the  witness  Hayes,  by 
General  Sutherland,  was  interrupted  by  the  Court. 

The  Court.  [By  Major  Gurnett.]  Are  you  aware 
that  there  was  a  provisional  government  established  on 
Navy  Island  ?  If  so;  who  were  the  members  of  that  go- 
vermnent  ? 

Ansivei'.  There  was  a  proclamation  on  the  island  cs- 
tahlishing  a  provisional  gocernment ;  and  Mackenzie  was 
chairman  of  it  pro  tern.  [This  part  of  the  answer  was 
manufactured  by  Lt.  Col.  Brown. J  I  think  that  Nelson 
Gorham  and  Silas  Fletcher  were  of  the  number. 

The  Court.     [By  Major  Gurnett.]     Were  the  military 
forces  over  which  General  Sutherland  was  seen  to  com- 
mand, acting  under  the  orders  of  that  government  ? 
Answer.     Yes. 

The  Cross-Examination  of  the  witness  Hayes,  by  Gen- 
eral Sutherland,  resumed. 

34?A  Question.  How  do  you  know  the  fact,  witness, 
that  the  military  forces  on  Navy  Island  were  acting  un- 
der the  ord-^rs  of  a  provisional  government,  while  I  was 
there  ? 

Answer.  I  was  told  by  Mr.  Mackenzie  that  he  was  the 
person  who  was  the  author  of  the  proclamation  published, 
and  placed  upon  the  island  in  different  places.  [This 
answer  was  manufactured  for  the  witness,  by  Colonel 
Kingsmill,  Lt.  Col.  Brown  and  Major  Gurnett.] 

35<A  Question.  You  have  said  that  there  was  a  pro- 
visional government  on  Navy  Island.  Please  define  the 
powers  of  that  government;  and  state  by  whom  granted  ; 
and  by  whom  exercised ;  and  what  acts  were  done  ?  You 
may  answer,  also,  if  the  proclamation  of  which  you  have 


144 


CROSS-EXAMINATION  f 


leslificd,  was  circulated  on  Niivy  Lslnml  while  I  was  there  ; 
and  wliul  were  the  odices  oC  the  provisjiouul  government, 
and  who  received  them  ? 

Answer,  I  know  that  they  invaded  a  pari  of  Upper 
Canada,  and  lield  it  ai^uinst  the  authorities  of  the  British 
government;  [This  was  put  in  the  witness's  month  by 
Major  CJurnctt  ;|  and  that  tliey  Imd  a  (la;^  ^h^^S  ^^''^^  '^^ 
word  "  lihe.rty^'^  and  tioo  stars  on  it.  This  power  was 
t^ranted  by  Mr.  Mackenzie  and  others  on  the  island.  Of 
their  acts,  I  knew  them  to  (ire  on  the  inhabitants  of  Cana- 
da from  the  island.  [This  was  put  into  the  mouth  of  the 
witness  by  Lt.  Col.  Brown.]  The  hund-bill,  o»-  procla- 
mation, was  circulated  on  Navy  Island  while  Gcner.il 
Sutherland  was  there.  Mr.  Mackenzie  was  Chairman  of 
the  committee  who  framed  the  proclamation,  but  I  cannot 
name  the  other  officers.  [This  was  put  into  the  mouth  of 
the  witness  by  Major  Gurnett.] 

36//i  Question.  Do  you  know,  by  whom  the  flag  you 
speak  of  was  put  up  on  Navy  Island  ? 

Amioer.     I  do  not.     It  was  flying  when  I  went  there. 

37//t  Questio7i.  Do  you  know,  witness,  by  whose  per- 
mission, or  by  what  authori'  General  Van  Rensselaer, 
myself,  or  any  other  citizen  e  United  States,  were  on 

Navy  Island  ?  If  so ;  state  u.  Can  witness  say  that  they 
were  not  on  Navy  Island,  by  the  order  or  permission  of  the 
Government  of  the  State  of  New- York  ;  or  of  the  Govern- 
ment of  the  United  States  ;  or  of  the  Government  of  Her 
Brittanic  Majesty  ? 

Answe7'.  They  assumed  the  authority  themselves^  of 
their  own  accord.  [This  was  put  into  the  mouth  of  the 
witness  by  Lt.  Col.  Brown  and  Major  Gurnett.]  I  do  not 
know  that  they  had  any  from  the  government  of  the  State 
of  New- York,  or  from  the  government  of  the  United 
States.  [This  was  put  into  the  mouth  of  the  witness  by 
the  Judge  Advocate.]  I  know  they  had  no  authority  from 
the  government  of  her  Brittanic  Majesty.     [/&.] 

3S^A  Question.  Have  you  stated  on  your  direct  exami- 
nation, all  that  was  material,  said  by  me  to  the  men  on 
Navy  Island,  at  the  time  I  was  about  to  leave  ? 

Answer.  I  do  not  recollect  any  thing  more  of  import- 
ance. 


Uni 

y 
kno 
Sta 

1 
liain 
him 


W 


as  there  ; 
orniniMit, 

jf  Upper 
e  British 
loutli  by 

with  the 
vver  was 
[i.id.  Of 
of  Cana- 
th  of  the 
r  protla- 

Geiier.vl 
lirtnan  of 

I  cannot 
mouth  of 

flag  you 

nt  there. 

hose  per- 

nsselaer, 
were  on 
hat  thev 

Dn  of  the 
Govern- 
t  of  Her 

does,  of 
of  the 

|I  do  not 
le  State 
United 

[ness  by 

ity  from 

exami- 
Len  on 

limport- 


OF    MATTHEW    HAYKS. 


115 


39/f//  Qin'stio/i.  Was  John  S.  Vrct'land  ;i  citiTon  of  tlio 
United  States,  to  your  knowledpfe  ? 

Amwer.  I  have  heard  it  said,  he  was  ;  but  I  do  not 
know.  I  should  think  he  was  a  citizen  of  the  United 
States. 

iOth  (luestinn.  You  have  testified  that  you  saw  Wil- 
liam Lyon  Mackenzie  on  Navy  Island.  Did  you  oversee 
him  wear  any  kitul  of  arms  while  I  was  on  the  Island? 

Answer.  I  saw  Mr.  Mackenzie  carry  pistols  in  his 
breast  during  the  time  General  Sutherland  was  on  the 
Island. 

^\st  Question.  At  the  time  of  the  first  conversation 
you  had  with  me  on  Navy  Island,  di«l  yoii  nc'  11  me  that 
Mr.  Mackenzie  was  your  particular  friend  ;  u  thiit  you 
had  come  to  Navy  Island  to  see  him  ;  an'!  t\i  ou  had 
been  persuaded  by  him  to  stay  on  the  Islanu  v 

Answer.     I  do  not  recollect  any  thinr^  of  the  khid. 

42rf  Question.  What  has  been  your  occupation  during 
ihe  past  year? 

Ansiver.  I  was  rittached  to  a  schooner  on  Lake  Onta- 
rio during  the  sunnier  months.  After  leaving  the  schcon- 
er,  I  lived  in  Toronto  until  the  31sl,  of  October  last. 

43<i  Question.  Had  you  been  an  inhabitant  of  the 
State  of  New- York  for  ^iome  months  previous  to  your  go- 
ing upon  Navy  Island  ?  If  so  ;  state  how  many  months, 
and  at  what  places  you  have  resided  in  said  State  ? 

Answer.  I  was  not  a  resident  or  inhabitant  of  the  State 
of  New-York.  But  I  was  some  time  in  Rochester,  and 
some  time  in  Buffalo,  trading. 

44M  Question.  Have  you  before  testified  or  been  ex- 
amined concerning  your  having  been  on  Navy  Island,  and 
about  what  transpired  there  ?  If  so  ;  did  you  then  state, 
or  testify  concerning  those  matters  as  you  have  now  testi- 
fied ?  •       ' 

Answer.  I  came  of  my  own  accord  to  Waterloo,  oppo- 
site Black  Rock,  and  was  there  asked  by  Colonel  Kirby, 
"  what  my  business  was  ?"  I  told  him  that  I  had  conie 
from  Navy  Island,  and  showed  my  pass  from  thence.  I 
told  him  all  I  knew  of  Navy  Island.  I  was  then  sent  to 
Chippewa,  where  I  saw  Col.  McNab,  in  the  evening  with 
some  other  officers  ;  and  I  stated  to  him  the  same  I  did  to 

13 


w 


146 


CROSS-EXAMINATION    OF    MATTJTEW    HAY3S. 


I 


Colonel  Kirby,  as  nearly  as  I  could  recollect.  Colonel 
r*IclNab  then  desired  me  to  call  on  him  again  the  next 
morning  :  and  I  calk  d  on  him  the  next  day,  which  was 
the  14tli  or  15ih  of  Januaiy,  when  a  mar'strate  was  sent 
for,  before  whom  I  made  a  statement,  like  that  which  I 
made  the  day  before,  and  partly  the  same  as  I  b'  e  made 
before  this  Courf.  '^he  same  in  substance,  ^^^is  last 
sentence  was  put  into  the  moulh  of  the  witness  b}'^  the 
Judge  Advocate.] 

^th  Question.  While  on  Navy  Island,  witness,  did 
you  tell  ms  that  Mr.  MacVenzie  had  assisted  you  in  get- 
ting so  le  ofRce  in  Toronto  ;  and  that  he  hid  done  you 
many  other  favors  ? 

Aiiawer.     No. 

46^A  Question.  Where  were  you,  and  in  what  busi- 
ness were  you  engaged,  from  the  4th  of  January,  when 
you  have  testified  that  you  obtain  d  your  pass  on  Navy 
Island,  to  the  13th  of  the  same  month,  when  you  have 
testified  you  crossed  to  Waterloo  ? 

Ansy^er,  After  1  left  Na'/y  Island,  I  discovered  that  I 
had  leff  a  coat  of  mine  behind,  and  waited  two  or  three 
days  at  Schlosser  to  recover  it.  1  then  went  to  Buffalo, 
where  I  remained  until  the  I3fh  of  January,  when  I  cross- 
ed over  to  Waterloo. 

It  was  then  sitjnifi?d  to  the  Court  bv  General  Suther- 
land,  that  the  cross-examination  on  his  part  'vas  closed. 
Whereupon,  the  Judg>=^  Advocate  acquainted  the  Court 
that  he  rested  the  proofs  on  the  part  of  the  prosecution. 

The  Prisoner,  General  Sutherland,  then  being  called 
upon  by  the  Cou:t  for  hifc  defeace,  prayed  the  Court  to 
grant  him  time  until  Thursday,  the  29th  day  of  March 
inst.,  to  send  for  his  witnesses,  and  to  prepare  a  defence 
in  writing  ;  and  the  Court  granted  the  same. 

Thereupon  the  President  adjourned  the  Court  till 
Thursday  the  29th  day  of  March,  inst.,  at  10  o'clock,  A. 
a»l.,  of  that  day. 

The  Court  met  pursuant  to  adjournment  on  the  29th  of  March,  and  then 
from  adjournment  to  adjournment,  until  the  leth  day  of  April,  when  it  was 
dissolved ;  it  having  found  General  Sutherland  guilty  of  the  Charge ;  and  fix 
ed  upon  him  a  sentence ;  though  the  preceeding  is  a  full  and  perfect  report' 
of  all  of  the  testimony  adduced  on  the  trial. 


Colonel 

the  next 

lich  was 

was  sent 

which  I 

e  made 
rhis  last 
s  b}'^  the 

ness,  did 
•u  in  get- 
lone  you 


hat  busi- 
rv,  when 
on  Navy 
^'ou  have 

ed  that  I 

or  three 

I  Buffalo, 

n  I  cross- 

Suther- 
s  closed. 

e  Court 
lUiion. 
ig  called 
ICourt  to 
>f  March 

defence 

'ourt  till 
flock,  A. 


and  then 
len  it  was 
ke ;  and  fix 
feet  report' 


THE  LAW  ENACTED  BY  THE  PROVINCIAL  FARLIA- 
MEXT  OF  UPPER  CANADA,  ON  WHICH  THE  PRE- 
CEDING TRIAL  WAS  PREDICATED. 


An  Act  to  protect  the  inhabitants  of  this  Province  against 
lawless  aggressloui,  from  Subjects  of  Foreign  CoutitrieSj 
at   Peace  with  Her  Majesty.     Passed  12th   January, 

1839. 

Whereas,  a  number  of  persons,  lately  inhabiting  the 
State  of  New-  York,  or  some  of  the  other  United  States  of 
America^  have  within  the  said  State  of  New-York,  lately 
enlisted  or  engaged  themselves  to  serve  as  soldiers,  or 
have  procured  others  to  enlist  or  engage  themselves  to 
serve  as  soldiers,  and  have  within  the  State  of  Neiv- 
York,  collected  artilUry,  arms  and  ammunition,  and  made 
other  preparations  for  a  hostile  invasion  of  this  Province, 
under  the  pretext  of  assisting  certain  traitors  who  have  fled 
from  this  Province  to  the  said  United  States :  and  whereas^ 
the  said  persons,  without  the  authority  of  their  Governn^'^nt, 
and  in  defiance  of  its  express  injunctions,  have  actually 
invaded  this  Province,  contrary  to  the  faith  and  obliga- 
tion of  the  treaties  subsist^'^^^g  between  the  United  Kingdom 
of  Great  Britain  and  Ireland  and  the  said  United  States^ 
and  during  the  continuance  of  the  relations  of  amity  and 
peace  between  the  two  countries :  and  whereas,  it  is  ne- 
cessary for  protecting  the  peace  and  security  of  this  Pro- 
vince, to  provide  for  the  prompt  punishment  of  persons  so 
offending :  Be  it  enacted,  by  the  Queen's  most  Excellent 
Majesty,  by  and  with  the  advise  and  consent  of  the  Legis- 
lative Council  and  Assembly  of  the  Province  of  Upper  Ca- 
nada, constituted  and  assembled  by  virtue  of  and  under 
the  authority  of  an  act  ppp'ied  in  the  Parliament  of  Great 
Britain,  crititled  "An  Act  to  repeal  certain  parts  of  an 
act  passed  in  the  fourteentli  year  of  His  Majesty's  r  ign, 
entitled  *  An  Act  for  making  more  effectual  provisions  for 
the  Government  of  the  Province  of  Quebec  in  North 
America,'  and  to  make  further  provision  for  the  Govern- 
ment of  the  said  Province,"  and  by  the  authority  of  the 


148 


ACT    12th    JAN. 


same,  That  if  any  person,  beiiig  a  citizen  or  subject  of 
any  Foreign  State  or  Country  at  peace  with  the  United 
Kingdom  of  Great  Britain  and  Ireland,  having  joined 
himself  before  or  after  the  passage  of  this  Act,  to  any  sub- 
jects of  our  Sovereign  Lady  the  Queen,  Her  Heirs  or  Suc- 
cessors, loho  are  or  hereafter  may  be  traitorously  in  arms 
against  her  Majesty,  Her  Heirs  or  Successors,  shall  after 
the  passirig  of  this  Act,  be  or  continue  in  arms  against 
Her  Majesty,  Her  Heirs  or  Successors  within  this  Pro- 
vince, or  commit  any  act  of  hostility  therein,  then  it  shall 
and  may  be  lawful  for  the  Governor  of  this  Province  to 
order  the  assembling  of  a  Militia  General  Court  Martial, 
for  the  trial  of  such  persons  agreeably  to  the  Militia  Laws 
of  this  Province,  and  upon  being  found  guilty  by  such 
Court  Martial  of  offending  against  this  Act,  such  persons 
shall  be  sentenced  by  the  said  Court  to  suffer  death,  or  such 
other  jntnishment  as  shall  be  awarded  by  the  Coitrt. 

2.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  if  any  subject  of  Her  Majesty,  Her  Heirs  or  Succes- 
sors, shall  within  this  Province,  levy  war  against  Her 
Majesty,  Her  Heirs  or  Successors,  in  company  with  any 
of  the  citizens  or  subjects  of  any  Foreign  State  or  Coun- 
try, then  being  at  peace  with  the  United  Kingdom  of 
Great  Britain  and  Ireland,  and  offending  against  the  pro- 
visions of  this  Act,  then  such  subject  of  Her  Majesty,  Her 
Heirs  or  Successors;  shall  be  liable  to  be  tried  and  pun- 
ished by  a  Militia  General  Court  Martial  in  like  manner 
as  any  citizen  or  subject  of  a  foreign  state  or  country  at 
peace  with  Her  Majesty,  Her  Heirs  or  Successors,  is  liable 
under  this  Act  to  be  iried  and  punished. 

3.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  the  citizen  or  subject  of  any  foreign  state  or  coun- 
try, offending  against  the  provisions  of  this  Act,  shall  be 
deemed  guilty  of  felony,  and  may,  notwithstanding  the 
provisions  hereinbefore  contained,  be  prosecuted  and  tried 
before  any  Court  of  Oyer  and  Terminer  and  General 
Gaol  Delivery  in  and  for  any  District  of  this  Province,  in 
the  same  manner  as  if  the  offence  had  been  committed  in 
such  District,  and  upon  conviction  shall  suffer  death  as  in 
cases  of  felony. 


MILITIA    LAWS. 


149 


sv.lject  of 
he  United 
ng  joined 
9  any  sub- 
^s  or  Siic- 
y  in  arms 
hall  after 
s  against 
this  Pro- 
m  it  shall 
rovince  to 
Martial, 
itia  Lawn 
/  by  such 
zh  persons 
h,  or  such 
trt. 

aforesaid, 
)T  Succes- 
linst  Her 
with  any 
I  or  Coun- 
igdom  of 
the  pro- 
isty,  Her 
and  pun- 
manner 
mntry  at 
is  liable 

foresaid, 
or  coun- 
shall  be 
ing  the 
nd  tried 
General 
nnce,  in 
nitteii  in 
th  as  in 


An  Act  CO  amend,  and  reduce  into  one  Act,  the  Militia 
Laws  of  this  Province.     Passed  March  6th,  1838. 

\Vhereas,  the  several  laws  now  in  force  for  embodying, 
organizing  and  training  the  Militia  of  this  Province  are, 
in  many  instances,  defective  and  ineffective  :  Be  it  there- 
fore eimcted,  by  the  Queen's  most  Excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Legislative  Coun- 
cil and  Assembly  of  the  Province  of  Upper  Canada,  con- 
stituted and  assembled  by  virtue  of  and  under  the  autho- 
rity of  an  Act  passed  in  Parliament  of  Great  Britain,  en- 
titled *'  An  Act  to  repeal  certain  parts  of  an  Act  passed 
in  the  fourteenth  year  of  His  Majesty's  reign,  entitled 
'  An  Act  for  ma''ing  more  effectufil  provisionjs  for  the  Go- 
vernment of  the  Province  of  Quebec  in  North  America,' 
and  to  make  further  provisions  for  the  Government  of  the 
said  Province,"  and  by  the  authority  of  the  same,  That 
from  and  after  the  passing  of  this  Act,  it  shall  and  may 
be  lawful  for  the  Lieutenant  Governor  from  time  to  time, 
to  divide  the  Militia  of  this  Province  into  such  number  of 
Regiments  or  Battalions  as  he  may  deem  most  conducive 
to  the  efficiency  of  the  said  Militia,  and  under  his  hand 
and  seal  to  appoint  a  sufficient  number  of  Colonels,  Lieu- 
tenant Colonels,  Majors,  Captains  and  other  officers,  to 
train,  discipline  and  command  the  said  Militia,  according 
to  sue!,  rules,  orders  and  directions,  as  shall  from  time  to 
time  be  issued  by  him  for  that  purpose  ;  which  officers  of 
Militia  shall  rank  wi  officers  of  Her  Majesty's  Forces 
serving  in  this  Province,  as  junior  of  their  respective  rank. 

32.  Be  it  further  enacted  ^  the  authority  aforesaid, 
That  when  the  Militia  of  this  Prov'nce  shall  he  called  out 
on  actual  service,  in  all  cases  where  a  General  Court 
Martial  shall  be  required,  the  Lieutenant  Governor,  upon 
application  to  him  made  through  the  offi<'er  commanding 
the  body  of  Militia  to  which  the  party  accused  may  be- 
long, or  in  case  he  be  the  accused,  then  throup-h  the  next 
senior  officer,  shall  issue  his  order  to  assembl-  i  General 
Court  Martial,  which  said  General  Coui  tartial  shall 
consist  of  a  President,  who  shall  be  a  field  officer,  and  not 
less  than  eight  other  commissioned  officers  of  the  Militia  : 
Provided  always,  that  in  all  trials  by  General  Courts  Mar- 

13* 


150 


MILITIA    LAWS. 


m 


tial  to  be  held  bv  virtue  of  this  Act,  the  Lieutenant  Go- 
vernor  shall  nominate  and  appoint  the  person  who  shall 
act  as  Judg-e  Advocate  ;  and  that  every  member  of  the 
said  Court  Martial,  before  any  proceeding  be  had  before 
the  Court,  shall  take  the  following  oath  before  the  Judge 
Advocate,  who  is  hereby  authorized  to  administer  the 
same,  viz  : — "  You,  A.  B.,  do  swear,  that  yoic  will  ad 
minister  justice  to  the  best  of  your  understandings  in  the 
matter  now  before  you^  accordi^ig  to  the  evidence  and  the 
Militia  laws  now  iri  force  in  this  ProvincCy  without  par- 
tiality, favor  or  affection  ;  and  you  further  swear,  that  you 
will  not  divulge  the  sentence  of  the  Court,  until  it  shall 
be  approved  by  the  Lieutenant  Governor;  neither  will 
you  upon  anj'  account,  at  any  time  whatever,  disclose  or 
discover  the  vote  or  opinion  of  any  particular  member  of 
the  Court  Martial,  unless  required  to  give  evidence  there- 
of as  a  witness  bv  a  Court  of  Justice,  in  due  course  of 
law  :  So  help  you  God  :"  And  so  soon  as  the  said  oath 
shall  have  been  administered  to  the  respective  members, 
the  President  of  the  Court  is  hereby  authorized  and  re- 
quired to  administer  to  the  Judge  Advocate,  or  the  person 
officiating  as  such,  an  oath  in  the  following  words  : — 
"  You,  A.  B.  do  swear,  that  you  will  not  upon  any  ac- 
count, at  any  lime  whatsoever,  disclose  or  discover  the 
vote  or  opi^'f^n  of  any  particular  member  of  the  Court 
Martial,  unless  required  to  give  evidence  thereof  as  a 
witness  by  a  Court  of  Justice,  in  due  course  of  law — so 
help  you  God :"  And  the  Judge  Advocate  shall,  and  is 
hereby  authorized,  to  adniinister  to  every  person  giving 
evidence  before  the  said  Court,  the  following  oath  : — 
"  The  evidence  you  shall  give  to  this  Court  Martial,  on 
the  trial  of  A.  B.  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth — so  held  you  God  :" — Provided  al- 
ways, thi.i  the  Judgment  of  every  such  Court  Martial 
shall  pass  with  the  concurrence  of  two-thirds  of  the  mem- 
bers, and  shall  not  be  put  in  execution  until  the  Lieute- 
nant Governor  has  approved  thereof. 


nant  Go- 
rho  shall 
;r  of  the 
id  before 
le  Judge 
ister  the 
will  ad 
g,  in  the 
e  and  the 
hout  par- 
,  that  you 
il  it  shall 
ther  will 
isclose  or 
ember  of 
ce  there- 
course  of 
said  oath 
nembers, 
1  and  re- 
le  person 
ivords : — 
any  ac- 
over  the 
le  Court 
eof  as  a 
law — so 
and  is 
giving 
oath  : — 
rtial,  on 
uth,  and 
nded  al- 
Martial 
le  mem- 
Lieute- 


MILITIA    LAWS. 


151 


An  extract  of  the  Militia  Laws  of  the  Province  of  Upper 
Canada,  passed  March  16,  180S; — and  in  force  until 
the  sixth  day  of  March,  1838. 

Sec.  23.  Be  it  further  enacted  hij  the  authority 
aforesaid,  That  when  the  Militia  of  this  Province  shall  be 
called  out  on  actual  service,  in  all  cases  where  a  General 
Court  Martial  shall  be  required,  the  Governor,  Lieutenant 
Governor,  or  person  administering  the  Government,  upon 
complaint  and  application  to  him  made,  through  the  Colo- 
nel, or  officer  commanding  the  body  of  Militia  to  which 
the  party  accused  may  belong,  shall  issue  his  orders  to 
the  said  comm?inding  officer  to  assemble  a  General  Court 
Mariial,  which  said  Court  Martial  shall  consist  of  a  Pre- 
sident, who  shall  be  a  field  officer,  and  twelve  other  covi' 
missioned  officers  of  the  Militia  :  Provided  always,  that  in 
all  trials  by  General  Court  Martial,  to  be  held  by  virtue 
of  this  Act,  the  Governor,  Lieutenant  Governor,  or  person 
administering  the  Government,  shall  nominate  and  ap- 
point the  person  who  shall  act  as  Judge  Advocate — and 
that  every  member  of  the  said  Court  Martial,  before  any 
proceedings  bf-  had  before  that  Court,  shall  take  the  fol- 
lowing oath  before  the  said  Judge  Advocate,  who  is  here- 
by authorized  to  administer  the  same,  viz : 

"  You,  A.  B.  do  swear  that  you  will  administer  justice 
to  the  best  of  your  understanding,  in  the  matter  now  before 
you,  according  to  the  evidence,  and  Militia  Laws  now  in 
force  in  this  Province,  without  partiality,  favor  or  affec- 
tion ;  and  yuu  further  swear,  that  you  will  not  divulge  the 
sentence  of  the  Court,  until  it  shall  be  approved  by  the 
Governor,  or  person  administering  the  Government ;  nei- 
ther will  you  upon  any  account,  at  any  time  whatsoever, 
disclose  or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  Court  Martial,  unless  required  to  give  evi- 
dence thereof  as  a  witness,  by  a  Court  of  Justice,  in  the 
due  course  of  law — so  help  you  God." 

So  soon  as  the  said  oath  shall  have  been  adminis- 
tered to  the  respective  members,  the  President  of  the 
Court  is  hereby  authorized  and  required  to  administer  to 
the  Judge  Advocate,  or  the  person  officiating  as  such,  an 
oath  in  the  following  words : 


f^m 


152 


AFFIDAVIT. 


"  You,  A.  B.  do  swear  that  you  will  not,  upon  any  ac- 
count, at  any  time  whatsoever,  disclose  or  discover  the 
vote  or  opinion  of  any  particular  member  of  the  Court 
Martial,  unless  required  to  give  evidence  thereof  as  a  wit- 
ness, by  a  Court  of  Justice,  in  the  due  course  of  law — so 
help  you  God." 

The  said  Judge  Advocate  shall,  and  he  is  hereby 
authorized  to  administer  to  every  person  giving  evidence 
before  the  said  Court,  the  following  oath : 

"  The  evidence  you  shall  give  to  this  Court  Martial,  on 
the  trial  of  A.  B.  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth — so  help  you  God." 

Provided  always,  that  the  judgment  of  every  such 
Court  Martial  shall  pass  with  the  concurrence  of  two- 
thirds  of  the  members,  and  shall  not  be  put  in  execution, 
until  the  Governor,  Lieutenant  Governor,  or  person  ad- 
ministering the  Government,  has  approved  thereof:  Pro- 
vided always,  that  tio  officer  serving  in  any  of  His  Ma- 
jesty^s  other  forces^  shall  sit  in  any  Court  Martial  upon 
the  trial  of  any  officer  or  private  man  serving  iri  the  Mi- 
litia, 


c 
a 

V 

a 


ti 

0 


a 

tl 


ss. 


AFFIDAVIT  OF  THE  STATE  SURVEYOR  OF  MICHIGAN; 
MADE  DURING  THE  IMPRISONMENT  OF  GENERAL 
SUTHERLAND  IN  UPPER  CANADA. 

State  of  Michigan, 

Wayne  County. 

John  Farmer,  of  the  city  of  Detroit,  in  said  county, 
being  duly  sworn,  doth  depose  and  say — that  on  the  9th 
day  of  March,  1838,  he,  this  deponent  received  an  order 
from  the  Governor  of  this  State  requiring  him,  (this  de- 
ponent,) as  surveyor,  to  take  immediate  measures  to  as- 
certain whether  the  arrest  of  Thomas  J.  Sutherland,  a 
citizen  of  the  United  States,  occurred  within  the  jurisdic- 
tion of  said  State. 

This  deponent  further  saith,  that  he  was  at  said  city  of 
Detroit  on  the  4lh  of  March,  1838,  the  time  he.  Gen. 
Sutherland,  was  arrested  by  the  British  authorities — that 
he  was  therefore  ignorant  of  the  place  of  his  arrest,  and 


any  nc- 
over  the 
le  Court 
as  a  wit- 
law — so 

hereby 
jvidence 

irtial,  on 
ith,  and 

ry  such 
of  two- 
:ecution, 
rson  ad- 
f:  Pro- 
His  Ma- 
lal  upon 
the  Mi- 


[HIGAN ; 
NERAL 


jcounty, 
I  the  9th 
n  order 
Ihis  de- 
to  as- 
land,  a 
irisdic- 

city  of 
Gen. 
k — that 
}t,  and 


AFFIDAVIT. 


153 


consequently  had  to  refer  to  others  for  information  ;  and 
as  it  was  reported  "  that  Benjamin  Chittenden  and  Da- 
vid Thompson  had  stated  that  they  saw  Gen.  Sutherland 
at  Gibralter,  on  the  4th  of  March  last,  the  day  of  his  ar- 
rest ;  that  they  also  saw  him  with  a  person  supposed  to 
be leave  our  shore  on  foot  upon  the  ice,  in  a  direc- 
tion for  Sandusky,  and  that  some  time  after  the  departure 
of  him,  Gen.  Sutherland,  they,  Chittenden  and  Thomp- 
son, started  in  a  sleigh  from  Gibralter,  on  the  ice  for  the 
city  of  Brest,  and  that  after  passing  Point  Mouillce,  and 
about  three  or  four  hours,  after  the  departure  of  Gen.  Su- 
therland, they,  Chittenden  and  Thompson,  saw  them 
about  two  and  a  half  miles  distant,  and  evidently  on  our 
waters,  overtaken  and  arrested  by  persons  in  sleighs  ap- 
parently direct  from  the  Canada  shore."  Therefore,  this 
deponent  sought  for,  but  not  being  able  at  that  time  to 
find  Thompson,  he  called  upon  said  Chittenden  only,  who 
not  only  confirmed  said  report,  but  also  stated  to  this  de- 
ponent that  he  presumed  that  he  could  find  the  tracks  of 
Gen.  Sutherland  on  the  ice,  by  tracing  which  this  depo 
nent  might  arrive  at  the  place  of  his  arrest ;  this  depo. 
nent  therefore  employed  said  Chittenden,  and  also  one  E. 
S.  Lathrop  to  assist  him,  and  having  provided  himself 
with  instruments  for  the  purpose  of  determining  accurate- 
ly the  situation  of  the  place  of  arrest,  providing  its  proxi- 
mity to  the  national  boundary  line  should  render  its  juris- 
diction uncertain  or  doubtful ;  he,  this  deponent,  with 
said  Chittenden  and  Lathrop,  proceeded  forthwith  to  Gi- 
bralter, thence  by  the  direction  of  Chittenden  to  a  place 
on  the  ice  below  Gibralter  where  said  Chittendent  pointed 
out  to  this  deponent  the  tracks  of  two  persons  leading  to- 
wards the  Canada  shore,  which  were  then  supposed  to  be 
the  tracks  of  Gen.  Sutherland  and ;  they  were  pa- 
rallel and  about  three  or  four  feet  apart — those  made  by 
the  person  who  had  walked  on  the  upper  side  were  much 
larger  of  the  two,  confirming  what  Chittenden  had  pre- 
ously  stated,  to  wit — that  Gen.  Sutherland  was  much  the 
larger  man  of  the  two,  and  walked  on  the  upper  side. 
These  tracks  this  deponent  traced  to  their  termination.,  as 
he  then  supposed,  a  short  distance  from  which,  was  a 
sleigh  track  apparently  from  Maiden  ;  but  which  this  de- 


m 


154 


AFFIDAVIT. 


I 


il 


ponent  could  not  arrive  at  nor  examine,  on  account  of  the 
holes  in,  and  the  decomposition  of  the  ice  at  this  place, 
which  was  exceedingly  rotten  and  covered  from  six  to  ten 
inches  with  water.  This  place,  this  deponent  and  also 
Chittenden  and  Lathrop  then  concluded  was  the  place  of 
Gen.  Sutherland's  arrest.  It  was,  in  the  opinion  of  this 
deponent,  within  one  and  a  half  miles  of  the  Canada 
shore,  and  in  full  view  of  Maiden  ;  the  Queen's  store 
house  at  which  place  could  be  distinctly  seen  between  the 
main  shore  of  Canada  and  Bois  Blanc  Island  ;  and  the 
light  house  on  said  Island  bore  north  five  degrees  east. 
[I  was  not  at  all  at  this  place  described.  I  walked  down- 
wards, near  the  shore  of  Michigan,  until  I  was  onL  of 
sight  of  Bois  Blanc  Island.]  This  place  then,  supposed 
to  be  the  place  of  his  arrest,  was  so  evidently  within  the 
jurisdiction  of  Canada,  that  this  deponent,  and  also  said 
Chittenden  and  Lathrop,  deemed  an  actual  survey  and 
measurement  entirely  unnecessary.  This  deponent  there- 
fore drew  up  a  report  at  the  time,  setting  forth  the  result 
of  said  examination  as  aforesaid,  which  was  signed  by 
this  deponent,  and  also  by  said  Chittenden  and  Lathrop 
and  which  he,  this  deponent,  delivered  to  the  Governor, 
a  copy  of  which  this  deponent,  has  not  preserved,  because 
he  then  believed  that  that  was  the  place  of  Gen.  Suther- 
land's arrest — and  that  it  was  so  evidently  within  the 
boundaries  of  Canada,  thai  its  jurisdiction  would  not  and 
could  not  be  questioned.  But  as  said  Chittenden  has, 
since  the  making  of  said  examination,  and  the  said  draw- 
ing up  and  signing  of  said  report,  stated  to  this  depo- 
nent that  he,  Chittenden,  upon  more  mature  reflection 
entertains   strong  doubts   about  those  being  the  tracks 

of  General  Sutherland  and ,  which  he  pointed  out  to 

this  deponent  at  said  examination  ;  and  that  if  they  were, 
that  he,  the  said  Chittenden,  is  of  the  opinion  that  the 
heavy  thaw  which  succeeded  their  arrest,  must  have  so 
obliterated  the  tracks  at  the  time,  and  especially  at  the 
place  of  examination  as  to  have  prevented  our  perceiving 
them  farther,  and  consequently  have  prevented  tracing 
them  to  their  ultimate  termination,  the  place  of  their  ar- 
rest; assigning  as  a  reason  that  Gen.  Sutherland  had 
been  travelling  quite  rapidly  for  three  or  four  hours  on  the 


AFFIDAVIT. 


155 


nt  of  the 
is  place, 
ix  to  ten 
and  also 
place  of 
ti  of  this 
Canada 
n's  store 
veen  the 
and  the 
ees  east. 
3d  down- 
as  Oli'i  of 
supposed 
ithin  the 
also  said 
rvey  and 
jnt  there- 
he  result 
igned  by 
I  Lathrop 
"overnor, 
because 
Suther- 
ithin  the 
not  and 
den  has, 
id  draw- 
is  depo- 
eflection 
le  tracks 
d  out  to 
jy  were, 
Ithat  the 
Ihave  so 
at  the 
fceiving 
tracing 
their  ar- 
pd  had 
Is  on  the 


ice,  when  he  was  overtaken  and  arrested,  and  that  conse- 
quently he  must  have  proceeded  farther  than  four  or  five 
miles  at  the  time  of  their  arrest ;  and  said  Chittenden  al- 
leged as  a  further  reason  that  he  and  said  Thompson  could 
not  have  seen  them  from  Point  Mouillee  when  arrested  if 
they  were  arrested  at  the  place  of  said  examination. 

This  deponent  would   therefore,  also,  observe   th;ii   if 
those  were  the    tracks  of  Gen.   Sutherland,  and  if  they 
were  beyond  the  place  of  said  examination,  that  he,  this 
deponent   is    fully  of  the    opinion,  thai   the  ice,  at  this 
place  and  inuiiediately  beyond,  in  its  vicinity,  was  so  ex- 
tremely rotten  and  full  of  holes,  as  to   have  rendered  it 
very  hazardous,  if  not  impossible,  to  have  pursued  them 
further,  even  if  their  tracks  had  continued  visible;  and 
this  deponent  further  observes,  that  the  snow  which  had 
been  quite  deep  on  the  ice  at  the  time  of  the  arrest,  was 
at  and  beyond,  in  the  immediate  vicinity  of  said  exami- 
nation, so  nearly  exhausted  by  the  thaw  which  succeeded 
the  arrest,  and  the  ice  at  this  place  was  so  covered  with 
water,  so  open  in  spots  and  filled  with  air-holes,  in  a  cer- 
tain direction,  that  this  deponent  is  of  the  opinion  that 
the  tracks  of  Gen.  Sutherland,  would  not  have  been  legi- 
ble farther,  if  they  had  continued  on  from  this  place  in 
the  same  direction,  or  if  they  had   turned   towards  the 
centre  of  the  Lake,  or  towards  a  certain  vessel  lying  in 
sight  of,  and  about  five  or  six  miles  from  this  place,  but 
their  tracks  would  have  been  legible  if  they   had  been 
turned  towards  the  American  shore.     It  is  therefore  pos- 
sible, (even  if  those  were  his  tracks,)  that  this  was  not 
the  termination,  or  the  place  of  the  arrest,  as  they  might 
have  turned  at  or  in  the  vicinity  of  this   place,  towards 
and  in  the  direction  of  a  vessel  frozen  in  the  ice,  which 
this  deponent  saw,  and  should  think  was  about  five  or  six 
miles  distant.     If  this  was  the  vessel,  (and  this  deponent 
saw  no  other,)  within  half  a  mile  of  which  it  is  reported 
that  Prince  states  he  arrested  Gen.  Sutherland,  and  if  ho 
w^as  arrested  within  half  a  mile  of  this  vessel,  then  this 
deponent  has  no  doubt  he  was  arres'^d  within  the  juris- 
diction of  the  United  States ;  for  this  deponent  is  clearly 
of  opinion  that  this  vessel  lay  at  least  a  mile  and  a  half, 
if  not  more,  westerly  of  the  national  boundary  line.    This 


156 


AFriDAVIT. 


deponent  would  also  ftirthor  observe,  that  in  his  opinion 
it  would  have  been  utterly  impossible  for  said  Chittenden 
and  Thompson,  to  have  seen  the  arrest  of  Gen.  Suther- 
land, by  the  British,  from  Point  Mouillee,  if  they  were 
arrested  at  the  place  of  said  examination  aforesaid,  and 
further  this  deponent  saith  not. 

JNO.  FARMER,  Surveyor,  (J-c. 
Detroit,  June  21,  1839. 

Subscribed  and  sworn  before  me,  ) 
this  21st  day  of  June,  1838.      ( 

D.  E.  Harbaugh,  Justice  of  the  Peace. 


AFFIDAVIT  OF  BENJAMIN  CHITTENDEN. 


ss. 


State  of  Michigan, 

Wayne  County. 

Benjamin  Chittenden,  of  the  city  of  Detroit,  in  said 
county,  being  duly  sworn,  doth  depose  and  say,  that  he 
is  personally  acquainted  with  Gen.  Th.  J.  Sutherland,  a 
prisoner  in  Canada,  and  was  so  acquainted  with  him, 
Gen.  Sutherland,  at  the  time  and  when  he.  Gen.  Suther- 
land, (in  company  with  one ,)  left  Gibraher,  in  a  di- 
rection for  Sandusky,  which  was  about  12  o'clock  on  the 
4th  of  March,  1838 ;  and  about  an  hour  and  a  half  after 
their  departure,  he,  this  deponent  with  one  David  Thomp- 
son, left  Gibraher  in  a  sleigh  for  the  city  of  Brest,  lying 
but  seven  miles  below  Swan  Creek,  and  that  after  travel- 
ling an  hour,  or  an  hour  and  a  half  from  Gibraher,  he, 
this  deponent,  passed  Gen.  Sutherland  on  the  ice,  7  or 
8  miles  below  Gibraher,  and  after  so  passing  them,  he, 
this  deponent  frequently  stopped  his  horse  and  looked  back, 
and  saw  Gen.  Sutherland  ;  and  being  veil  acquainted 
with  the  course  and  distance  from  the  mouth  of  the  river 
to  Pele  Island,  he,  this  deponent,  then  observed  to  said 
Thompson,  that  by  the  direction  of  Gen.  Sutherland,  he 
could  not  be  bound  to  Pele  Island.  This  deponent  further 
says,  that  about  four  o'clock,  P.  M.  of  the  same  day,  and 
after  passing  Point  Mouillee,  he,  this  deponent,  saw  Gen. 
Sutherland    about  two  and  half  miles  distant  from  said 


AFFIDAVIT. 


157 


I  opinion 
ittenden 
Suther- 
ey  were 
aid,  nnd 

r,  ^c. 


Peace. 


)EN. 


in  said 

that  he 

rland,  a 

ith  him, 

Suther- 

in  a  di- 

on  the 

f  after 

homp- 

travel- 

|ter,  he, 

e,  7  or 

m,  he, 

i  back, 

ainted 

3  river 

|to  said 

nd,  he 

further 

,  and 

Gen. 

said 


deponent,  nnd  evidently  on  our  own  waters,  and  i'ar  from 
the  boundary  line,  he,  this  deponent  saw  Gen.  Suther- 
land stop  and  stand  still,  and  at  the  same  time,  he,  this 
deponent,  saw  sleighs  with  persons  therein  drive  up  to, 
and  arrest  Gen.  Sutherland  ;  which  sleighs,  this  deponent 
had  for  some  time  seen  approaching  him  ;  and  this  de- 
ponent further  says,  that  he  is  certain  that  Gen.  Suther- 
land stopped  some  minutes  before,  and  stood  still  until 
the  sleighs  drove  up,  and  the  persons  therein  arrested 
liim ;  and  that  he.  Gen.  Sutherland,  did  not  run  on  the 
approach  of  the  sleighs,  as  is  reported  to  have  been  stated 
by  Col.  Prince,  who  arrested  him. 

This  deponent  further  says,  that  he  was  called  upon  for 
information  relative  to  Gen.  Sutherland's  arrest,  and  at 
request,  accompanied  John  Farmer,  the  Surveyor,  on  the 
10th  of  March,  1838,  for  the  purpose  of  examining  the 
place  of  Gen.  Sutherland's  arrest,  and  that  although  he, 
this  deponent,  signed  a  report,  the  result  of  said  exami- 
nation, as  set  forth  in  the  affidavit  of  said  Farmer  ;  yet 
nevertheless,  he,  this  deponent,  upon  mature  reflection 
and  deliberation  entertains  strong  doubts  about  those  be- 
ing the  tracks  of  Gen.  Sutherland,  which  he,  this  depo- 
nent pointed  out  to  said  Farmer,  which  he  and  said  Far- 
mer traced,  and  iipon  which  the  report  of  said  examina- 
tion was  founded,  as  set  forth  in  the  affidavit  of  said  Far- 
mer ;  because  this  deponent  was  below  Point  Mouillee 
when  he  saw  Gen.  Sutherland  arrested,  from  which  place 
this  deponent  is  now  confident  he  could  not  have  seen 
Gen.  Sutherland  when  arrested,  if  arrested  at  the  place 
of  examination  on  the  10th  of  March,  as  set  forth  in  the 
report  of  said  examination,  referred  to  in  the  affidavit  of 
said  Farmer. 

This  deponent  further  says,  that  if  those  were  the 
tracks  of  Gen.  Sutherland,  which  he  pointed  out  to  said 
Faixner,  at  the  time  of  the  examination  on  the  10th  of 
March,  that  then,  he,  this  deponent,  is  clearly  of  the  opin- 
ion that  the  thaw  which  had  taken  place  subsequent  to 
the  arrest,  but  previous  to  the  examination,  must  have  so 
obliterated  the  impression  of  Gen.  Sutherland's  tracks  at 
and  beyond  the  place  of  examination,  as  to  have  prevent- 
ed the  tracing  of  them  to  the  place  of  arrest.     This  de- 

14 


169 


AFFIDAVTT. 


ponent  thinks  the  appearance  of  the  sleigh  tracks  referred 
to  in  the  report,  could  not  have  been  that  of  Prince's  ;  and 
that  if  those  were  the  tracks  of  Gen.  Sutherland  referred  to 
in  the  report  of  the  exuniinalion,  that,  then,  Gen.  Suther* 
land  must  have  chanp^ed  his  direction  at  the  place  of  exa- 
mination,  and  proceeded  towards  a  certain  vessel  which 
was  frozen  in  the  ice,  and  the  only  one  at  the  head  of  the 
Lake — and  which  said  deponent  saw  during  the  examina- 
tion on  the  10th  of  March,  and  which  said  deponent  should 
think,  and  knows,  was  five  or  six  miles  distant — and  as 
far  as  the  eye  could  reach.  If  this  was  the  vessel  within 
half  a  mile  of  which  it  is  reported  that  Prince  has  stated 
he  arrested  Gen.  Sutherland,  and  being  the  only  one 
in  that  vicinity,  then  he  must  have  been  arrested  on  our 
own  waters,  for  this  deponent  thinks  said  vessel  was  not 
less  than  two  and  a  half^  or  three  i  iles  westerly  of  and 
from  the  boundary  line. 

.    BENJAMIN  CHITTENDEN. 
Subscribed  and  sworn  before  me, 
this  22d  day  of  June,  1838. 

J.  W.  HiDUG,  Justice  of  the  Peace. 


referred 
e's ;  and 
ferred  to 
Sulher- 
c  of  exa- 
el  which 
id  of  the 
jxamina- 
it  should 
— and  as 
i\  within 
as  stated 
)nly  one 
d  on  our 
was  not 
y  of  and 

[DEN. 


LETTER  TO  LORD  BROUGHAM. 


To  THE  Right  HoNORAnLE  Lord    Brougham,  a  Peer  of 
the  Realm  of  Great  Britain. 

iViv  Lord — I  am  wholly  unable  to  determine  what 
apolopy  I  ought  to  make  for  the  liberty  I  have  taken  in 
addressing  your  Lordship  with  this  communication.  In- 
deed, 1  know  not  that  I  have  any  apology  to  give,  save 
the  motive  with  which  the  communication  is  made  ;  and 
upon  this,  alone,  I  have  founded  the  hope  that  your  Lord- 
ship may  be  induced  to  take  into  consideration — and  to 
act  upon  the  matters  herein  presented. 

It  is  due  to  frankness,  my  Lord,  as  I  think,  that  I  should 
state,  before  proceeding  further  with  this  my  communi- 
cation, that  I  was,  myself,  among  the  number  of  those 
American  citizens,  who,  in  1837  and  1838,  took  a  part 
with  the  inhabitants  forming  a  revolutionary  party  in  the 
Canadas  ;  and  that  with  the  Revolutionists  of  those  Pro- 
vinces, in  the  capacity  of  a  military  officer,  I  assisted  in 
the  effort  which  was  then  made  to  subvert  the  authority 
established  therein  by  Her  Majesty's  Government.  My 
reasons  for  having  been  concerned  in  those  operations 
will  be  found  in  what  I  am  now  about  to  ofTer  in  behalf 
of  a  number  of  my  fellow-citizens,  who,  like  myself,  vvere 
concerned  in  those  revolutionary  movements  of  the  Cana- 
das ;  and  who,  having  been  taken  in  arms  by  Her  Ma- 
jesty's military  forces,  have  been  transported  to  Van  Die- 
mans  Land,  one  of  the  penal  Colonies  of  Great  Britain, 
and  there  reduced  to  the  condition  of  common  felons ;  as 
well  as  in  certain  papers  and  publications  which  I  shall 
endeavor,  herewith,  to  cause  to  be  put  into  the  hands  of 
your  Lordship. 

According  to  the  information  of  which  I  am  possessed, 
the  number  of  my  unfortunate  countrymen  who  were 
captured  during  the  late  civil  commotions  in  the  Canadas 
and  who  now  remain  in  the  hands  of  Her  Majesty's  Go- 
vernment, must  somewhat  exceed  one  hundred.  These 
men,  as  it  is  represented  on  good  authority,  have  been 
placed  in  a  convict  station,  with   thieves,  robbers,  burg- 


160 


LETTER    TO    LORD    BROUGHAM. 


lars  and  others  of  the  vilest  of  the  overflowings  of  the 
prisons  of  the  British  Empire  ;  and  that  thus  associated, 
they  are  made  to  do  penance  in  the  same  manner  as  those 
who  have  been  convicted  of  crimes  embracing-  moral  tur- 
pitude. As  they  were  taken  in  arms  against  Her  Majes- 
ty's Government,  the  right  of  that  government  to  detain 
them  as  prisoners,  so  long  as  Ker  Majesty  shall  please,  is 
not  to  be  disputed  ;  but  I  contend,  my  Lord,  that  persons 
taken  under  the  circnmstances  that  my  countrymen  were 
captured,  cannot,  in  justice,  be  regarded  as  felons — and 
that  the  reducing  of  them  to  the  condition  of  such — and 
the  making  them  the  companions  of  foot  pads  and  house 
breakers,  is  not  only  a  violation  of  rules  adopted  and  pur- 
sued by  the  people  of  the  most  enlightened  nations,  but 
that  it  is  an  uncalled  for  severity  and  a  cruelty  unnecessary 
to  the  case  ;  and  tending  to  defeat  the  very  object  for 
which  punishments  are  declared  by  the  laws  of  the  Bri- 
tish nation.  Her  Majesty's  Government  may  call  them 
pirates  and  robbers,  and  condemn  them  to  the  punishment 
of  felons,  but  those,  my  unfortunate  fellow  citizens  can  ne- 
ver be  made  to  regard  themselves  as  such.  They  had 
acted  only  from  motives  of  giving  a  generous  assistance  to 
what  they  believed  was  a  struggle  for  liberty ;  and  while 
they  are  loaded  with  chains  and  incarcerated  in  dungeons, 
they  Avill  esteem  themselves  martyrs  to  the  cause  of  free- 
dom. I  am,  also,  my  Lord,  from  information,  ir  luced  to 
believe  that  those  men  have  been  condemned  i  )on  pro- 
ceedings which  would  in  no  manner  bear  a  legal  scrutiny. 

We  had  had  it  presented  to  us  from  the  pages  of  the 
history  of  our  own  country,  that  when  the  Canadas  were 
wrested  from  the  French  nation,  thev  were  rather  con- 
quests  to  the  people  of  the  American  Colonies,  (now  the 
United  Statet,)  than  to  the  British  Government ;  and, 
therefore,  when  we  had  reflected  that  it  was  our  fore- 
fathers who  mainly  contributed  to  make  the  Canadas 
— what  our  territories  weie  then — British  Colonies, 
we  could  not  deem  it  wrong  to  give  the  people  of  those 
colonies  assistance  in  an  attempt  to  make  their  country 
what  ours  is  now — Free  and  hidependent  States ! 

We  had  lately  beheld  the  whole  American  people  vie- 
ing  with  each    other  to  do   honor  to  the  persons,  and  to 


LETTER    TO    LORD    BROUGHAM. 


161 


of  the 
ociated, 
[IS  those 
Dral  tur- 
'  Majes- 
3  detain 
lease,  is 
persons 
en  were 
IS — and 
;h — and 
d  house 
md  pur- 
ons,  but 
jcessary 
DJect  for 
the  Bri- 
ll! them 
ishment 
can  ne- 
ley  had 
tance  to 
d  while 
ngeons, 
free- 
uced  to 
on  pro- 
ratiny. 
of  the 
s  were 
er  con- 
ow  the 
and, 
•  forc- 
nadas 
lonies, 
those 
ountry 

lie  vie- 
land  to 


glorify  the  names  of  those  illustrious  forp'^ners  who 
who  came  to  this  country  and  embarked  with  our  forefa- 
thers in  their  early  and  hazardous  struggle  for  liberty  and 
independence  ;  and  we  had  seen  monuments  to  comme- 
morate their  services  in  the  cause  of  our  forefathers,  put 
up  at  the  expense  of  (lur  government ;  which  was  to  us 
a  prompting  of  a  desire  to  earn  the  same  honors  for  our- 
selves. 

However,  my  Lord,  this  was  not  enough  to  induce  the 
action  of  myself,  or  of  any  of  my  unfortunate  fellow-citi- 
zens. Nor  were  we  moved  to  interfere  with  the  political 
affairs  of  the  Canadas,  until  we  had  beheld  a  civil  com- 
motion begun  and  in  full  operation  in  those  Provinces  ; 
and  our  services  had  been  solicited  by  men  on  whom  the 
people  of  the  Canadas  had  conferred  the  highest  honors 
within  their  gift. 

Nor  until  we  had  beheld  that  the  Government  estab- 
lished therein  by  Her  Majesty,  had  failed  to  give  security 
to  life  and  property,  (the  only  legitimate  purpose  of  Go- 
vernment,) and  that  robbery,  arson  and  murder  was  being 
perpetrated  in  every  section  of  the  Provinces,  with  bold- 
ness and  impunity. 

Nor  until  we  had  beheld  large  numbers  of  women  and 
children,  who  had  been  driven  from  their  homes  in  the 
Canadas,  by  the  violence  of  the  soldiery  employed  there- 
in by  Her  Majesty's  Government,  thrown  destitute  upon 
our  borders,  appealing  to  our  s^'mpathies  for  the  bread  of 
existence. 

Nor  until  we  had  beheld  a  large  foreign  army  landed 
in  the  Canadas,  and  marched  through  their  territories, 
not  to  defend  the  people  from  the  aggressions  of  foreign 
enemies,  but  to  subject  them  to  political  slavery. 

Yet,  when  all  these  matters  had  passed  before  our  eyes  ; 
and  when  we  had  listened  to  the  tales  of  wrongs  and 
grievances  which  were  related  to  us  by  all  of  the  vast 
number  of  people  who  had  come  among  us  from  the 
Canadas,  and  wh.  h  we  believed,  becuase  they  were  simi- 
lar to  those  tales  we  had  heard  fiom  our  forefathers,  who 
had  themselves  been  British  Colonists  ;  and  when  we 
had  been  made  to  believe  that  the  people  of  the  Canadas 
were  about  to  make  a  hearty  struggle  for  liberty,  we  were 

14* 


162 


LETTER    TO    LOKD    BROUGHAM. 


not  even  then    prepared   to  embark  in  those  movements, 
so  unfortunate  to  us  all,  (for  1  too,  my  Lord,  have  been  a 
prisoner  in  the  hands  of  Her   Majesty's  Government  for 
many  dreary  months,)  until  public    meetings   of  our  citi- 
zens had  been  held  along  the  whole  borders  from  Maine 
to  Michigan  ;  at  which  meetings  clergymen,  members  of 
congress  and  of  the  state  leoislatures,  judges,  justices  of 
the  peace,  lawyers,  physicians,  and  others  of  the  most  re- 
spectable of  our   citizens   presided    as  officers;  and    the 
most  eloquent  of  our  countrymen  were  speakers — who  in 
their  addresses,  declared  the  struggle  of  the  Canadians, 
"  not  alone  the  cause  of  the  people  of  those  Provinces — 
but    ours — of    free     government — and    of   all    mankind. 
The  cause  of  true  religion  and  of  God  I"  and  thev  bade 
us  "  go  to  the  aid  of  the  Canadians  ;  to  go  by  ones — by 
twos — and  by  threes';"  and  they   proclaimed  it  "  to  he  a 
cause  glorious,  even   to  fail  in ;"  while  our   people  put 
their  hands  to  their   pockets  to  furnish  the  means;  and 
having  given  arms  to  numbers  of  the   young  and  chival- 
rous of  our   country,  them    they   sent   off  to  fight  in  the 
cause  of  political  freedom.     Therefore,  if  we  were  guilty 
of  wrong,  it  was  equally  the  wrong  of  those  who  sent  us  ; 
and  if  we  have  offended,  it  was  no  more  our  offence  than 
that  of  the  whole  American  people. 

But  as  it  must  be  known  to  your  Lordship,  in  this  the 
people  of  the  United  States  did  no  more  than  has  been 
done  by  British  subjects  in  almost  every  country  on 
the  face  of  the  earth,  where  there  has  been  presented  the 
same  state  of  political  affairs  which  existed  in  the  Cana- 
das  in  1837  and  1838. 

All  that  we  had  proposed  in  aid  of  the  people  of  the 
Canadas  we  had  seen  given  by  British  subjects  in  aid  of 
the  people  of  all  of  the  revolted  colories  of  SppJn  in 
South  America  :  By  British  subjects  in  aid  of  the  people 
of  a  revolted  colony  of  Portugal,  on  the  same  continent. 

All  that  we  had  offered  in  support  of  the  revolutiona- 
ry movements  of  Canada,  we  had  seen  given  by  the  Bri- 
tish subjects  in  aid  of  a  revolution  in  Spain  :  By  British 
subjects  in  aid  of  a  revolution  in  Portugal ;  and  by  Bri- 
tish subjects  in  aid  of  a  revolution  in  Circassia. 

All  that  we  had  aimed   to   effect  in  the  Canadas,  we 


LETTEK    TO    LOUD   BROUGHAM. 


163 


nents, 
3een  a 
2nt  for 
ir  citi- 
Maine 
bers  of 
ices  of 
losl  re- 
id   the 
who  in 
adians, 
nces — 
mkind. 
IV  bade 
les — by 
'  to  he  a 
pie  put 
IS ;  and 
chival- 
t  in  the 
e  guilty 
sent  us ; 
ce  than 

:his  the 
IS  been 
itry  on 
ked  the 
Cana- 

of  the 
aid  of 
|)pJn  in 
people 
Itinent. 
itiona- 
Bri- 
Jritish 
Bri- 

IS,  we 


had  seen  effected  by  British  subjects  in  carrying  out  a  re- 
volution in  Greece  :  By  British  subjects  in  carrying  out  a 
revolution  in  Portugal. 

Then,  if  we  may  put  confidence  in  the  public  accounts 
of  the  day,  as  often  as  any  of  the  British  subjects  who 
have  been  engaged  in  revolutionary  movements  of  other 
countries  have  been  captured  by  their  adversaries,  Her 
Majesty's  Government  have  sent  commissioners  to  inter- 
cede for  them  and  to  prevent  their  being  subjected  to 
punishment ;  and  in  many  instances  their  liberation  has 
been  demanded  in  the  name  of  the  power  of  the  British 
nation. 

In  view  of  all  these  matters,  my  Lord,  it  is  an  opinion 
adopted  by  a  large  majority  of  the  people  of  the  United 
States,  that  Her  Majesty's  Government  have  no  justifica- 
tion for  the  treatment  bestowed  upon  our  fellow  citizens 
now  prisoners  in  their  hands.  Indeed,  my  Lord,  we  must 
regard  the  course  of  the  French  people  adopted  on  a  re- 
cent occasion  as  a  rebuke  to  Her  Majesty's  government  for 
their  conduct  in  this  matter  ;  inasmuch,  as  that  when 
within  a  very  recent  date,  an  expedition  having  been  fit- 
ted out  m  London  and  embarked  on  board  a  British  ves- 
sel, sailed  direct  from  thence  for  the  coast  of  France, 
where  the  expedition  was  landed  and  an  attempt  made 
by  it  to  effect  a  political  revolution  in  that  country; 
and  when  the  expedition  had  failed  entirely,  and  every 
person  belonging  to  it  was  either  killed  or  taken  prisoner  ; 
yet  not  an  individual  who  fell  into  the  hands  of  the 
French  Government,  of  that  expedition,  as  prisoners,  was 
condemned  as  a  felon  ;  but  each  and  every  one  of  them 
taken,  has  been  detained  as  political  prisoners. 

It  is  difficult,  my  Lord,  to  suppose  a  government  like 
that  of  Her  Majesty's,  could  entertain  vindictive  feelings 
towards  any  individuals  whom  they  have  in  custody  as 
prisoners  ;  and  the  more  especially  towards  those  who 
are  known  to  possess  no  political  influence  whatever  -,  and 
who  in  the  matters  in  which  they  have  been  implicated, 
w^ere  but  subordinates  and  of  the  rank  and  file.  Then, 
can  it  be  for  the  honor,  or  in  any  manner  accrue  to  the 
benefit  of  the  British  nation  longer  to  detain  in  the  condi- 
tion of  common  felons  the  American  citizens  whom  Her 


164 


LETTER    TO    LORD     BKOirGHAM. 


Majesty's  Government  have  sent  to  Van  Diemans  Land  ? 
It'  it  can,  I  believe  the  world  will  be  unable  to  discover 
wherein. 

All  civil  commotion  in  the  Canadas  is  declared  to  be  at 
an  end  ;  and  it  has  been  proclaimed  by  the  Governor 
General  of  those  Provinces,  that  he  no  longer  fears  a  re- 
newal of  the  frontier  disturbances  ;  and  the  military  pow- 
er of  Her  Majesty's  Government  is  now  so  well  establish- 
ed in  the  Canadas,  that  it  is  not  remaining  with  the 
things  possible  ♦hat  the  people  of  those  Provinces  should 
be  found  able,  however  much  inclined,  to  make  the  first 
step  towards  a  change  of  their  political  institutions  by  an 
appeal  to  arms,  unless  assisted  by  the  Government  of 
some  powerful  nation,  having  the  resources  necessary  to 
organize  and  sustain  large  naval  and  military  forces. 

For  a  long  series  of  years  previous  to  the  breaking  out 
of  the  civil  commotions  in  the  Canadas  in  1837,  there  had 
subsisted  the  most  amicable  relations  between  the  citizens 
of  the  United  States  and  the  people  of  those  Provinces ; 
and  it  is  now  not  less  for  the  interest  of  the  people  of 
those  Provinces,  than  that  of  the  citizans  of  the  United 
States,  that  all  causes  for  recollecting  the  part  each  may 
have  taken  in  those  civil  commotions,  should  be  effaced. 

It  might  be  asked,  my  Lord,  why  it  is  left  for  private 
citizens  to  interfere  for  the  release  of  our  countrymen, 
now  prisoners  in  the  hands  of  the  British  Government  ; 
and  why  their  liberation  has  not  been  asked  for  by  the 
Government  of  the  United  States  ?  But,  to  this  sup- 
posed inquiry,  I  answer,  that  while  our  institutions  and 
laws  leave  the  individual  citizen  free  to  go  from  the 
country  and  unite  himself  in  arms  with  any  people  to 
whom  his  likes  or  interests  may  direct  him ;  and  with  them 
carry  on  war  against  any  other  nation  or  people,  they  pv°r- 
emptorily  prohibit  those  administering  our  Government 
from  recognizing  such  person  as  a  citizen  of  the  Republic, 
or  of  interfering  in  their  behalf,  whenever  they  may  be- 
come prisoners  in  the  hands  of  their  adversaries.  Con- 
sequently, no  application  for  the  liberation  of  my  unfor- 
tunate countrymen  can  be  expected  to  come  from  the 
Government  of  the  United  States.  It  is  only  by  private 
citizens  of  this  country,    united  with  the  benevolent  of 


LETTER    TO     LORD    BROUGirAM. 


165 


Great  Britain,  that  anv  application  may  be  made  in  their 
behalf. 

I  would  also  suggest  to  your  Lordship,  that  the  further 
detention  of  my  unfortunate  countrymen  not  only  seems 
to  work  a  hardship  and  a  wrong  to  the  individuals,  but 
from  the  existence  of  their  extensive  family  connexions, 
which  are  scattered  along  our  whole  frontier;  and  the 
deep  sympathy  which  is  felt  for  them  by  a  great  majority 
of  the  American  people,  I  believe  I  am  correct  when 
I  advise  your  Lordship  that  it  is  likely  to  engender  a  last- 
ing and  uncompromising  hatred  between  the  people  on 
the  different  sides  of  the  frontier  lines  ;  and  to  create  with 
the  people  within  our  borders,  a  spirit  of  retaliation, 
which  in  case  of  a  war  between  the  United  States  and 
Great  Britain,  would  be  the  foundation  for  unnecessary 
bloodshed  and  the  exercise  of  the  severest  cruelties  ;  and 
for  a  return  to  the  usages  of  the  savage  people  of  a  dark- 
er age,  under  which  hut  few  prisoners  are  laken — and  no 
courtesy  or  kindness  afforded  to  any.  Their  sufferings 
may,  likewise,  be  made  the  capital,  to  be  used  by  some 
reckless  aspirant  for  fame,  for  another  volunteer  military 
movement  in  behalf  of  the  liberties  of  theCanadas,  though 
such  could  only  bring  injury  to  the  Government  of  both 
countries,  and  misery  and  distress  upon  the  people. 
Therefore,  for  the'  avoiding  of  these  matters,  which  all 
must  desire — and  in  behalf  of  the  American  citizens  now 
prisoners  in  the  hands  of  Her  Majesty's  Government,  I 
request  that  your  Lordship  will  be  pleased  to  take  an  early 
occasion  to  bring  their  case  again  to  the  consideration  of 
Her  Majesty's  Ministry,  sq  that  'hey  may  be  liberated 
and  permitted  to  return  to  their  country  and  friends  :  or 
that  they  may  be,  at  least,  relieved  from  their  present  in- 
tolerable condition. 

With  the  highest  consideration  for  your  Lordship, 
I  am,  my  Lord, 

Your  Lordship's  obedient  and  humble  servant. 

TH :  J.  SUTHERLAND. 

Nev/-York,  January  1,  1841. 


1  r 


CAPTIVE  PATRIOTS, 

NOW  IMPRISONED  AT  VAN  DIEMANS  LAND. 

A  LIST    OF  THE  NAMES    OF  THE  AMERICAN  CITIZENS  TAKEN  AT 
WINDMILL  POINT,  NEAR  PRESCOT,  IN  UPPER  CANADA. 


From  Jefferson  County,  N.  Y. 


NAMES. 

John  Bradley, 

Orlin  Blodgei, 

Chnuncey  fiugby, 

Geo.  T.  Brown, 

Ilichard  Bell, 

Nelson  Colton, 

Lysander  Curtis, 

Robert  G.  Collins, 

John  Cronkhite, 

Moses  A.  Dutcher,  Brownville, 

Luther  Darby,         Watertown, 

Aaron  Dresser,        Alexandria, 

Leonard  Delano,      Watertown, 

Elon  Fellows,  Dexter, 

Emanuel  Garrison,  Brownville, 

John  Gilman, 


nESIDENCE. 

Watertown, 

Philadelphia, 

Lyme, 

Le  Ray, 

Antwerp, 

Orleans, 

Lyme, 

Le  Ray, 


William  Gates, 

David  Allen, 
John  Berry, 
Joseph  Lee, 

John  Holmes, 
John  Monisette, 
John  Thomas, 


NAMES. 

Daniel  D.  Hustis, 
Garret  Hicks, 
David  House, 
James  Inglish, 
Andrew  Leeper, 
Joseph  Lafort, 
Daniel  Liscome, 
Andrew  Moore, 
Foster  Martin; 
Ira  Polly, 
William  Reynolds, 
Orin  W.  Smith, 
John  G.  Swo.nburgh 
Henry  Shew, 
Thomas  Stockton, 
Riley  Whitney, 

County,  N.  Y. 

Jehiel  H.  Martin, 
Alanson  Owens, 
Samuel  Washburn, 


Lyme, 

From  Oswego 

Volney, 

Oswego, 

Palermo, 

From  St.  Lavrence  Co.  N.  Y. 


RESIDENCE. 

Wulertown. 
Alexandria, 

Adams, 

Antwerp, 

Lyme, 

Charmont, 

Adams, 

Antwerp, 

Lyme, 

Orleans, 

u 

,  Alexandria, 
Philadelphia, 

Rutland, 

Lyme. 


Oswego, 
Palermo, 
Oswego. 


Edward  A.  Wilson,  Ogdensburgh, 
Jacob  Herald,  " 


Salina, 


Philip  Algire, 
Hugh  Calhoun, 
Michael  Fryer, 
G.  A.  Goodrich, 
Nelson  G.  Griggs, 
Hiram  Loop, 

From  Erie  Co.  N.  Y. 
Asa.  M.  Richardson,  Buffalo 


Madrid, 

Ogdensburgh, 

Madrid, 

From  Onondaga  County,  N.  Y. 

Calvin  Matthews,        Lysander, 
Chauncey  Matthews,  Salina, 
Jacob  Paddock,  " 

Hiram  Sharpe,  " 

Nathan  Whiting,  Liverpool, 

Jerry  C.  Griggs,  Salina. 

From  Lewis  Co.  N.  Y. 
Stephen  S.  Wright,  Denmark. 


Clay, 
Salina, 

Liverpool, 


Thomas  Baker, 

Benj.  Woodbury,      Auburn, 

From  Herkimer  Co.  N.  Y. 
William  Goodrich,    Norway. 


From  Cayuga  Co.  N.  Y. 
Hannibal,       Patrick  White, 


Auburn. 


j         Fro7n  Oneida  Co.  N.  F. 
[James  Pierce,  Marshall. 


CAPTIVE    PATRIOTS. 


167 


lander, 


jrpool, 
la. 

Irk. 
irn. 

I'all. 


From  Warren  Co.  N.  Y. 
.Solomon  Reynolds,  Quecnsbury 


Residence  not  known. 
Joseph  Stewart. 


Clevclaml, 


A  LIST  OF  THE    NAMES  OF  THE  AMERICAN    CITIZENS  TAKEN   AT 
OR  NEAR  WINDSOR,  IN  UPPER  CANADA. 
From  Cuyahoga  Co.  Ohio. 

James  V.  Willinms,  Cleveland,    James  Williams, 

.Samuel  Snow,  Stronsvilk,  Charles  Reed, 

.Simeon  Goodrich,  Cleveland,    Robert  Whitney, 
Robert  Marsh,  "  Oliver  Crandall, 

David  J)ny,  "  John  L.  Guttridge, 

From  Wood  Co.  Ohio. 

Mitchell   Monroe,  Toledo. 

From  Lorain  Co.  Ohio. 

Alien  B.  Sweet,  (John  Sprneue. 

William  Notiage,  jChauncy  Sheldon. 

From  Wayne  Co.  Michigan. 
Daniel  Anthony,  Detroit. 

From  Washtenaw  Co.  Michigan. 

Hiram  Barnham,         Ypsilanti,  |  James  D.  Few,  Ypsilanti. 

From  Erie  Co  N.  Y. 


John  Simon?, 
Joseph  Horton, 


JlufFalo, 


Ezra  Ilorlon, 


Buffalo. 


From  Madison  Co.  N.  Y. 
Eleazur    Stevens,    Lebanon. 
From  Niagara  Co.  N.  Y. 
John  W.  Simmons,  Lockport,      |  Truman  Woodbury,  Lcckport. 

From  Monroe  Co.  N.  Y. 

John  C.  Williams,  Rochester. 

Resilience  not  known. 


John  W.  Brown, 
John  B.  Turrcll, 
Horace  Cooley, 
William  Montague, 
Samuel  Hilkey, 


Elijah  Woodbury, 
Jamfs  Achason, 
Joseph  Stewart, 
John  S.  Maybee. 
Henry  G.  Barnum. 


A   LIST  0?    THE  NAMES  OF  THE  AMERICAN    CITIZENS  TAKEN  AT 

SHORT    HILLS,  IN    UPPER  CANADA. 

From  Chaittauque  Co.  N.  Y. 

Linus  Wilson  Miller. 

Residence  not   known. 

Erasius  Warner,  I        Norman  Maliory, 
Samuel  Chandler,  John  Vernon, 

Benjamin  Waite,  James  Van  ^Vagcon^^r. 

Geo.  B.  Cooley, 

0O~  Of  the  American  citizens  captured  in  Lower  Canada,  no  list 
of  names  has  been  obtained. 


f 


CONTENTS. 

Advertisement, Pace. 

Dedication, 3 

Letter  to  the  British  Queen, ^ 

Letter  to  Lord  Durham,  ...'... ^ 

Letter  to  Sir  George  Arthur,  '.*.'.' ^l 

Letter  t6  Lord  Glenelg, ]* ^ 

Appendix.  ^^ 

Members  of  the  Court, 

Preliminary  Proceedings, ^ 

Report  of  the  Testimony,' ^ 

Act  of  the  12th  of  Jan ^^^ 

Militia  Laws, ^^^ 

Affidavits, ........*. ^"^^ 

Letter  to  Lord  Brougham, ^^* 

Captive  Patriots '^^ 


